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<pre>                 United States Court of Appeals <br>                      For the First Circuit <br> <br> <br>No. 98-1657 <br> <br>         SARAH P. WESSMANN, p.p.a. HENRY ROBERT WESSMANN, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                        ROBERT P. GITTENS, <br>       CHAIRPERSON OF THE BOSTON SCHOOL COMMITTEE, ET AL., <br> <br>                      Defendants, Appellees. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>           [Hon. Joseph L. Tauro, U.S. District Judge] <br> <br> <br> <br> <br>                              Before <br> <br>            Selya, Boudin and Lipez, Circuit Judges. <br>                                 <br> <br> <br>     Michael C. McLaughlin for appellant. <br>     Chester Darling on brief for Citizens for the Preservation of <br>Constitutional Rights, amicus curiae. <br>     Frances S. Cohen, with whom Janet A. Viggiani, Hill & Barlow, <br>Merita Hopkins, Corporation Counsel of the City of Boston, and <br>Diane DiIanni, Special Assistant Corporation Counsel (Boston School <br>Committee), were on brief, for appellees. <br>     Elaine R. Jones, Theodore M. Shaw, Norman J. Chachkin, and <br>Kimberly West-Faulcon, NAACP Legal Defense and Educational Fund, <br>Ozell Hudson, Jr., Lawyers' Committee for Civil Rights Under Law of <br>the Boston Bar Association, E. Macey Russell, Peabody & Arnold, <br>Jonathan M. Albano, Denise J. Casper and Bingham Dana LLP on brief <br>for Boston Branch, NAACP, and various individuals, amici curiae. <br> <br> <br> <br> <br>November 19, 1998 <br> <br> <br> <br>

  SELYA, Circuit Judge.  The City of Boston operates three <br>renowned "examination schools," the most prestigious of which is <br>Boston Latin School (BLS).  The entrance points for admission to <br>BLS occur principally at the seventh- and ninth-grade levels.  In <br>this litigation, plaintiff-appellant Henry Robert Wessmann, on <br>behalf of his minor child, Sarah P. Wessmann, challenges the <br>constitutionality of BLS's admissions policy (the Policy).  The <br>district court rebuffed Wessmann's challenge.  See Wessmann v. <br>Boston Sch. Comm., 996 F. Supp. 120 (D. Mass. 1988).  On appeal, we <br>must decide whether the Policy, which makes race a determining <br>factor in the admission of a subset of each year's incoming <br>classes, offends the Constitution's guarantee of equal protection.  <br>We conclude that it does. <br>I.  BACKGROUND <br>  We essay a brief historical reconnaissance to set the <br>present dispute in perspective. <br>  Over two decades ago, a federal district court adjudged <br>the City of Boston (through its School Committee) to have violated <br>the constitutional rights of African-American children by promoting <br>and maintaining a dual public school system.  See Morgan v. <br>Hennigan, 379 F. Supp. 410, 480-81 (D. Mass. 1974) (Morgan I).  <br>Although the court found the school system as a whole guilty of dejure segregation, no specific evidence was produced to suggest that <br>BLS's examination-based admissions policy discriminated against <br>anyone or that those responsible for running BLS intended to <br>segregate the races.  See id. at 467-68.  Nonetheless, BLS <br>exhibited some of the symptoms of segregation:  an anomalously low <br>number of African-American students attended the school, see id. at <br>466 (tabulating statistics for examination schools), and the school <br>had just changed its entrance testing methods pursuant to a consent <br>decree settling charges that the earlier methods were themselves <br>discriminatory, see id. at 467-68.  These factors, combined with <br>the City's inability to demonstrate that existing racial imbalances <br>were not a result of discrimination, led the court to conclude that <br>the City's examination schools (BLS included) were complicit in <br>promoting and maintaining the dual system.  See id.  The <br>presumption established by the Supreme Court in Keyes v. School <br>Dist. No. 1, 413 U.S. 189, 210 (1973), to the effect that a finding <br>of intentional segregation in a "meaningful portion" of a school <br>system suggests that other segregated schooling in the system is <br>not accidental, played a pivotal role both in the district court's <br>holding and in our ensuing affirmance.  See Morgan v. Kerrigan, 509 <br>F.2d 580, 594 (1st Cir. 1974) (affirming Morgan I, 379 F. Supp. at <br>467). <br>  The remedy adopted by the district court, among other <br>things, obligated BLS to ensure that at least 35% of each entering <br>class would be composed of African-American and Hispanic students.  <br>See Morgan v. Kerrigan, 401 F. Supp. 216, 258 (D. Mass. 1975).  <br>Relying on the Keyes presumption, we affirmed this set-aside as <br>part of a comprehensive plan to ameliorate pervasive and persistent <br>constitutional infirmities throughout the Boston public schools.  <br>See Morgan v. Kerrigan, 530 F.2d 401, 425 (1st Cir. 1976). <br>  The Boston school system began  gradually to mend its <br>ways.  By 1987, systemic progress permitted us to conclude that, <br>for all practical purposes, the School Committee had achieved <br>unitariness in the area of student assignments.  See Morgan v. <br>Nucci, 831 F.2d 313, 326 (1st Cir. 1987).  We based our conclusion <br>not only on the distribution of students throughout the City's <br>schools, but also on the good faith demonstrated by school <br>administrators in conforming with the demands of meaningful change.  <br>See id. at 319-26.  Because comparable improvement had not been <br>accomplished in other areas, such as faculty and staff integration <br>and the renovation of facilities, we instructed that federal court <br>supervision of elements other than student assignment continue.  <br>See id. at 327-32.  The district court thereupon relinquished <br>control over student assignments, even while retaining active <br>supervision over other aspects of the school system. <br>  After 1987, the City's three examination schools   BLS, <br>Boston Latin Academy, and the O'Bryant School    were no longer <br>under a federal court mandate to maintain a 35% set-aside.  <br>Nevertheless, the School Committee remained committed to the policy <br>until 1995, when a disappointed applicant challenged the set- <br>aside's constitutionality.  The district court granted injunctive <br>relief directing the complainant's admission to BLS.  SeeMcLaughlin v. Boston Sch. Comm., 938 F. Supp. 1001, 1018 (D. Mass. <br>1996).  The School Committee then discontinued the 35% set-aside. <br>  Concerned that the number of African-American and <br>Hispanic students admitted to the examination schools might drop <br>precipitously without a predetermined set-aside, school officials <br>began researching alternative admissions policies in hopes of <br>finding one that might prevent that result without offending the <br>Constitution.  The effort started in mid-1996 under the hegemony of <br>Thomas Payzant, superintendent of the Boston public schools.  <br>Payzant commissioned Bain & Co. (Bain), a consulting firm, to <br>review an array of admissions options ranging from lotteries to <br>strict merit-selection plans and to report on how each option might <br>affect the racial and ethnic composition of the examination <br>schools' entering classes. <br>  After Payzant informed the School Committee of Bain's <br>preliminary findings, Robert P. Gittens, the School Committee <br>chairman, appointed a task force to study the matter.  The task <br>force held meetings, hosted public hearings, and ultimately <br>recommended the adoption of Bain's "Option N50."  Bain's study <br>showed that a major difference between Option N50 and some other <br>possible alternatives (such as a strict merit-selection option) was <br>that the former would minimize the diminution of black and Hispanic <br>student admissions expected to result from abandonment of the 35% <br>set-aside.  Three members dissented from this recommendation.  The <br>School Committee nonetheless accepted Option N50, effective for the <br>1997-98 school year.  Option N50 thereupon became the core of the <br>Policy. <br>  We recount the Policy's most salient features, leaving <br>aside complexities not relevant to the case at hand.  To gain <br>admission to one of Boston's three examination schools, a student <br>must take a standardized test.  Based on a mathematical formula <br>that purports to predict academic performance, school hierarchs <br>combine each applicant's test score with his or her grade point <br>average, derive a composite score, rank all applicants accordingly, <br>and proceed to assign individuals to the applicant pool for the <br>examination school(s) in which they have indicated an interest.  To  <br>be eligible for admission to any of the examination schools, an <br>applicant must be in the qualified applicant pool (QAP), a group <br>composed of those who rank in the top 50% of the overall applicant <br>pool for that particular school. <br>  Half of the available seats for an examination school's <br>entering class are allocated in strict accordance with composite <br>score rank order.  The other half are allocated on the basis of <br>"flexible racial/ethnic guidelines" promulgated as part of the <br>Policy.  To apply these guidelines, school officials first <br>determine the relative proportions of five different racial/ethnic <br>categories   white, black, Hispanic, Asian, and Native American   <br>in the remaining pool of qualified applicants (RQAP), that is, the <br>QAP for the particular school minus those persons already admitted <br>on the basis of composite score rank order alone.  They then fill <br>the open seats in rank order, but the number of students taken from <br>each racial/ethnic category must match the proportion of that <br>category in the RQAP.  Because the racial/ethnic distribution of <br>the second group of successful applicants must mirror that of the <br>RQAP, a member of a designated racial/ethnic group may be passed <br>over in favor of a lower-ranking applicant from another group if <br>the seats allotted for the former's racial/ethnic group have been <br>filled. <br>  Sarah Wessmann encountered such a fate.  BLS had 90 <br>available seats for the 1997 ninth-grade entering class.  Based on <br>her composite score, Sarah ranked 91st (out of 705) in the QAP.  To <br>fill the first 45 seats, the school exhausted the top 47 persons on <br>the list (two aspirants declined in order to accept invitations <br>from another examination school).  Had composite scores alone <br>dictated the selection of the remainder of the ninth-grade entering <br>class, Sarah would have been admitted.  But the racial/ethnic <br>composition of the RQAP was 27.83% black, 40.41% white, 19.21% <br>Asian, 11.64% Hispanic, and 0.31% Native American.  Consequently, <br>the Policy required school officials to allocate the final 45 seats <br>to 13 blacks, 18 whites, 9 Asians, and 5 Hispanics.  As a result, <br>black and Hispanic students whose composite score rankings ranged <br>from 95th to 150th displaced Sarah and ten other white students who <br>had higher composite scores and ranks. <br>  Acting to Sarah's behoof, her father sued a coterie of <br>defendants (collectively, the School Committee), alleging that the  <br>the Policy had defeated her candidacy and challenging its <br>constitutionality.  Following a 13-day bench trial, the district <br>court held that the School Committee's interests in promoting a <br>diverse student body and remedying vestiges of past discrimination <br>were compelling, and that the means crafted by the School Committee <br>to further these interests were not so expansive as to raise <br>constitutional concerns.  See Wessmann, 996 F. Supp. at 127-32.  <br>This appeal ensued. <br>II.  ANALYSIS <br>  We divide our analysis into four segments, beginning with <br>the standards that govern our review, then addressing the general <br>idea of "compelling governmental interests," and, finally, <br>proceeding to consider seriatim the two justifications asserted by <br>the School Committee in defense of the Policy. <br>                     A.  Standards of Review. <br>  The Supreme Court consistently employs sweeping language <br>to identify the species of racial classifications that require <br>strict scrutiny, see Adarand Constructors, Inc. v. Pea, 515 U.S. <br>200, 224 (1995) (plurality op.) (concluding upon a review of the <br>Court's precedents that government must "justify any racial <br>classification subjecting [a] person to unequal treatment under the <br>strictest judicial scrutiny"); Wygant v. Jackson Bd. of Educ., 476 <br>U.S. 267, 273 (1986) (plurality op.) (remarking that racial <br>distinctions of "any sort" invite "the most exacting judicial <br>examination") (citation and internal quotation marks omitted), and <br>the Policy fits comfortably within this rubric.  We conclude, <br>therefore, that strict scrutiny is the proper standard for <br>evaluating the Policy.  Hence, the Policy must be both justified by <br>a compelling governmental interest and narrowly tailored to serve <br>that interest in order to stand. <br>  The School Committee's rejoinder   that the Policy is not <br>a quota   is a non sequitur.  We agree that the Policy does not <br>constitute a quota   at least not in the literal sense of an <br>unchanging set-aside   but that fact gains the School Committee <br>little ground.  At a certain point in its application process   <br>specifically, during the selection of the second half of each <br>incoming class   the Policy relies on race and ethnicity, and <br>nothing else, to select a subset of entrants.  Thus, whether the <br>Policy is truly a quota or whether it is best described otherwise <br>is entirely irrelevant for the purpose of equal protection <br>analysis.  Attractive labeling cannot alter the fact that any <br>program which induces schools to grant preferences based on race <br>and ethnicity is constitutionally suspect.  See Regents of Univ. of <br>Cal. v. Bakke, 438 U.S. 265, 289 (1978) (opinion of Powell, J.) <br>(noting that regardless of whether the limitation at issue is <br>described as "a quota or a goal," it is "a line drawn on the basis <br>of race and ethnic status"); cf. Lutheran Church-Mo. Synod v. FCC, <br>141 F.3d 344, 354 (D.C. Cir. 1998) (articulating similar sentiments <br>anent employment preferences). <br>  The School Committee also asserts an entitlement to more <br>lenient review because the Policy neither benefits nor burdens any <br>particular group.  Under the flexible guidelines, the argument <br>goes, the racial/ethnic distribution of the entering classes will <br>change yearly, and thus, there is no real preference for any single <br>group. <br>  This assertion leads nowhere, for the manner in which the <br>Policy functions is fundamentally at odds with the equal protection <br>guarantee that citizens will be treated "as individuals, not as <br>simply components of a racial, religious, sexual or national <br>class."  Miller v. Johnson, 515 U.S. 900, 911 (1995) (citations and <br>internal quotation marks omitted).  Even though we may not know <br>before the fact which individuals from which racial/ethnic groups <br>will be affected, we do know that someone from some group will be <br>benefitted and a different someone from a different group will be <br>burdened.  Because a court's obligation to review race-conscious <br>programs and policies cannot be made to depend "on the race of <br>those burdened or benefitted by a particular classification," City <br>of Richmond v. J.A. Croson Co., 488 U.S. 469, 494 (1989) (plurality <br>op.) (citations omitted), no more is exigible to bring strict <br>scrutiny into play. <br>     A remaining issue under this heading concerns our review <br>of the district court's findings and conclusions.  We accord <br>deferential review to specific findings of fact emanating from a <br>bench trial.  See Fed. R. Civ. P. 52(a).  Here, however, because <br>the issues advanced in this appeal   specifically, whether <br>diversity and curing vestiges of past discrimination satisfy strict <br>scrutiny   raise either questions of law or questions about how the <br>law applies to discerned facts, our review is essentially plenary.  <br>See Vecios de Barrio Uno v. City of Holyoke, 72 F.3d 973, 978 (1st <br>Cir. 1995). <br>             B.  Compelling Interests:  An Overview. <br>     The question of precisely what interests government may <br>legitimately invoke to justify race-based classifications is <br>largely unsettled.  Of course, we know that such state action is <br>acceptable upon a showing, inter alia, that it is needed to undo <br>the continuing legacy of an institution's past discrimination.  See <br>Miller, 515 U.S. at 920.  We also know that the Court has rejected <br>the "role model" theory as a compelling interest.  See Croson, 488 <br>U.S. at 497-98.  Beyond these examples, the case law offers <br>relatively little guidance. <br>     A few cases suggest (albeit in dictum) that remedying <br>past discrimination is the only permissible justification for race- <br>conscious action by the government.  See, e.g., id. at 493 (stating <br>that unless classifications based on race are "strictly reserved <br>for remedial settings, they may in fact promote notions of racial <br>inferiority and lead to a politics of racial hostility").  But in <br>certain milieus, some courts have accepted race-based taxonomies <br>that are not linked to remedying past discrimination, particularly <br>in settings such as law enforcement and corrections.  See Wittmerv. Peters, 87 F.3d 916, 919 (7th Cir. 1996) (collecting cases); <br>see also Croson, 488 U.S. at 521 (Scalia, J., concurring) (stating <br>that, "[a]t least where state or local action is at issue, only a <br>social emergency rising to the level of imminent danger to life and <br>limb" may justify race-conscious action). <br>     In considering whether other governmental interests, <br>beyond the need to heal the vestiges of past discrimination, may be <br>sufficiently compelling to justify race-based initiatives, courts <br>occasionally mention "diversity".  At first blush, it appears that <br>a negative consensus may be emerging on this point.  The Wittmercourt noted that the defendants "did not rely on generalities about <br>racial balance or diversity" to justify their hiring program, <br>suggesting that such an attempted justification would have lacked <br>vitality.  87 F.3d at 920.  Other courts have stated the conclusion <br>more explicitly.  See Lutheran Church, 141 F.3d at 354 (ruling out <br>diversity as a compelling governmental interest in the employment <br>context); Hopwood v. State of Texas, 78 F.3d 932, 948 (5th Cir. <br>1996) (similar, in the educational context). <br>     We think that any such consensus is more apparent than <br>real.  In the education context, Hopwood is the only appellate <br>court to have rejected diversity as a compelling interest, and it <br>did so only in the face of vigorous dissent from a substantial <br>minority of the active judges in the Fifth Circuit.  See Hopwood v. <br>State of Texas, 84 F.3d 720, 721 (5th Cir. 1996) (Politz, C.J., <br>with whom King, Wiener, Benavides, Stewart, Parker, and Dennis, <br>JJ., joined, dissenting from denial of rehearing en banc).  The <br>question that divided the Fifth Circuit centered on the <br>precedential value of Justice Powell's controlling opinion in <br>Bakke.  The panel in Hopwood pronounced that opinion dead.  The <br>dissenting judges countered that the reports of Bakke's demise were <br>premature. <br>     It may be that the Hopwood panel is correct and that, <br>were the Court to address the question today, it would hold that <br>diversity is not a sufficiently compelling interest to justify a <br>race-based classification.  It has not done so yet, however, and we <br>are not prepared to make such a declaration in the absence of a <br>clear signal that we should.  See Agostini v. Felton, 117 S. Ct. <br>1997, 2017 (1997).  This seems especially prudent because the Court <br>and various individual Justices from time to time have written <br>approvingly of ethnic diversity in comparable settings, see, e.g., <br>Wygant, 476 U.S. at 315 (Stevens, J., dissenting); Washington v. <br>Seattle Sch. Dist. No. 1, 458 U.S. 457, 472-73 (1982), or have <br>noted that the issue remains open, see Wygant, 476 U.S. at 286 <br>(O'Connor, J., concurring).  But see Metro Broad., Inc. v. FCC, 497 <br>U.S. 547, 614 (1990) (O'Connor, J., dissenting) ("Like the vague <br>assertion of societal discrimination, a claim of insufficiently <br>diverse broadcasting viewpoints might be used to justify equally <br>unconstrained racial preferences, linked to nothing other than <br>proportional representation of various races."). <br>     As matters turn out, we need not definitively resolve <br>this conundrum today.  Instead, we assume arguendo   but we do not <br>decide   that Bakke remains good law and that some iterations of <br>"diversity" might be sufficiently compelling, in specific <br>circumstances, to justify race-conscious actions.  It is against <br>this chiaroscuro backdrop that we address the School Committee's <br>asserted "diversity" justification for the Policy.  Thereafter, we <br>turn to its alternate justification:  that the Policy is an <br>appropriate means of remediating the vestiges of past <br>discrimination. <br> <br> <br>                          C.  Diversity. <br>     The word "diversity," like any other abstract concept, <br>does not admit of permanent, concrete definition.  Its meaning <br>depends not only on time and place, but also upon the person <br>uttering it.  See Towne v. Eisner, 245 U.S. 418, 425 (1918) <br>(Holmes, J.) ("A word is not a crystal, transparent and unchanged, <br>it is the skin of a living thought and may vary greatly in color <br>and content according to the circumstances and the time in which it <br>is used."); Hanover Ins. Co. v. United States, 880 F.2d 1503, 1504 <br>(1st Cir. 1989) (warning of the fallacy of believing that "a word <br>is a word is a word").  It would be cause for consternation were a <br>court, without more, free to accept a term as malleable as <br>"diversity" in satisfaction of the compelling interest needed to <br>justify governmentally-sponsored racial distinctions. <br>     The School Committee demurs.  Citing to Swann v. <br>Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971) (stating <br>that school authorities have "broad power to formulate and <br>implement educational policy," including prescribing a specific <br>percentage of minority students to attend each school "in order to <br>prepare students to live in a pluralistic society") (dictum), it <br>labors to persuade us that we would be warranted in deferring to <br>its judgment because school officials necessarily enjoy substantial <br>discretion in making education policy.  We are not convinced. <br>     The Swann song upon which the School Committee relies <br>cannot be wrested from the score. Cf. Gomillion v. Lightfoot, 364 <br>U.S. 339, 343-44 (1960) (admonishing that, "[p]articularly in <br>dealing with claims under broad provisions of the Constitution, <br>which derive content by an interpretive process of inclusion and <br>exclusion, it is imperative that generalizations, based on and <br>qualified by the concrete situations that gave rise to them, must <br>not be applied out of context in disregard of variant controlling <br>facts").  Swann was decided when dual educational systems were a <br>reality and efforts to dismantle them were being frustrated by <br>school officials who demonstrated little ardor for implementing the <br>mandates of desegregation.  Chary that the exigencies of the need <br>for change might precipitate a rush to judgment, the Justices <br>confirmed that federal courts must put the horse before the cart, <br>that is, they must diagnose some constitutional malady before <br>beginning to dispense remedies.  See Swann, 402 U.S. at 16.  Thus, <br>the Swann dictum, properly construed, recognizes that a low <br>percentage of minority students in a particular school does not <br>necessarily betoken unconstitutional conduct, but may result from <br>innocent causes (say, the population distribution of a given <br>district), and warns that, unless a skewed enrollment pattern is <br>caused by  unconstitutional student assignment practices, federal <br>courts must defer to school officials' discretion and refrain from <br>imposing remedies. <br>     This well-accepted principle does not help the School <br>Committee.  The  Swann Court had no occasion to consider the <br>question, central to this appeal, of whether and to what extent the <br>Constitution circumscribes school officials' discretion to <br>formulate and implement an admissions policy that embraces a <br>particular brand of pluralism.  Cf. Bakke, 438 U.S. at 314 (opinion <br>of Powell, J.) ("Although a university must have wide discretion in <br>making the sensitive judgments as to who should be admitted, <br>constitutional limitations protecting individual rights may not be <br>disregarded.").  In the end, then, the School Committee's reference <br>to Swann only begs the question:  Swann reiterated that federal <br>courts must grant remedies where there are constitutional <br>violations, and the question here is whether the School Committee <br>itself has violated the Constitution.  It follows that, in order to <br>persuade us that diversity may serve as a justification for the use <br>of a particular racial classification, the School Committee must do <br>more than ask us blindly to accept its judgment.  It must give <br>substance to the word. <br>     The School Committee endeavors to meet this challenge <br>primarily by lauding benefits that it ascribes to diversity.  <br>Drawing on the testimony of various witnesses (school <br>administrators, experts, and alumni), the Committee asserts that, <br>because our society is racially and ethnically heterogeneous, <br>future leaders must learn to converse with and persuade those who <br>do not share their outlook or experience.  This imperative becomes <br>even more urgent because technology, now more than ever, forces <br>heretofore estranged nations and cultures to communicate and <br>cooperate.  For these reasons, the School Committee exhorts us to <br>find that diversity is essential to the modern learning experience. <br>     Stated at this level of abstraction, few would gainsay <br>the attractiveness of diversity.  Encounters between students of <br>varied backgrounds facilitate a vigorous exchange of ideas that not <br>only nourishes the intellect, but also furthers mutual <br>understanding and respect, thereby eroding prejudice and acting as <br>a catalyst for social harmony.  Indeed, Justice Powell's opinion in <br>Bakke acknowledges that these very attributes may render an <br>educational institution's interest in promoting diversity <br>compelling.  See id.     In the last analysis, however, the School <br>Committee's reliance on generalizations undercuts its construct.  <br>If one is to limit consideration to generalities, any proponent of <br>any notion of diversity could recite a similar litany of virtues.  <br>Hence, an inquiring court cannot content itself with abstractions.  <br>Just as Justice Powell probed whether the racial classification at <br>issue in Bakke in fact promoted the institution's stated goals, seeid. at 315-19, we must look beyond the School Committee's recital <br>of the theoretical benefits of diversity and inquire whether the <br>concrete workings of the Policy merit constitutional sanction.  <br>Only by such particularized attention can we ascertain whether the <br>Policy bears any necessary relation to the noble ends it espouses.  <br>In short, the devil is in the details. <br>     By its terms, the Policy focuses exclusively on racial <br>and ethnic diversity.  Its scope is narrowed further in that it <br>takes into account only five groups   blacks, whites, Hispanics, <br>Asians, and Native Americans   without recognizing that none is <br>monolithic.  No more is needed to demonstrate that the School <br>Committee already has run afoul of the guidance provided by the <br>principal authority on which it relies:  "The diversity that <br>furthers a compelling state interest encompasses a far broader <br>array of qualifications and characteristics of which racial or <br>ethnic origin is but a single though important element."  Id. at <br>315.  A single-minded focus on ethnic diversity "hinder[s] rather <br>than further[s] attainment of genuine diversity."  Id.  Nor is the <br>Policy saved because the student assignments that it dictates are <br>proportional to the composition of the RQAP.  See id. (noting that <br>the adoption of a "multitrack" program "with a prescribed number of <br>seats set aside each for identifiable category of applicants" would <br>not heal the admissions plan's constitutional infirmity). <br>     When we articulated this concern at oral argument, the <br>School Committee's able counsel responded that it is unnecessary <br>for the Policy to consider other indicia of diversity because BLS <br>historically has been diverse with respect to everything but race <br>and ethnicity.  For empirical confirmation of this assertion, the <br>School Committee points to Bain's handiwork.  Having analyzed <br>various admissions options, Bain suggested that all the options <br>would result in substantial gender, neighborhood, and socioeconomic <br>diversity, but that, unless race and ethnicity were explicitly <br>factored into the admissions calculus, attainment of racial and <br>ethnic diversity might be jeopardized.  This attempted confirmation <br>does not pass constitutional muster. <br>     If, as we are told, diversity has been attained in all <br>areas other than race and ethnicity, then the School Committee's <br>argument implodes.  Statistics compiled for the last ten years show <br>that under a strict merit-selection approach, black and Hispanic <br>students together would comprise between 15% and 20% of each <br>entering class, and minorities, in toto, would comprise a <br>substantially greater percentage.  Even on the assumption that the <br>need for racial and ethnic diversity alone might sometimes <br>constitute a compelling interest sufficient to warrant some type of <br>corrective governmental action, it is perfectly clear that the need <br>would have to be acute   much more acute than the relatively modest <br>deviations that attend the instant case.  In short, the School <br>Committee's flexible racial/ethnic guidelines appear to be less a <br>means of attaining diversity in any constitutionally relevant sense <br>and more a means for racial balancing.  The Policy's reliance on a <br>scheme of proportional representation buttresses this appearance <br>and indicates that the School Committee intended mainly to achieve <br>a racial/ethnic "mix" that it considered desirable.  Indeed, Bain's <br>Option N50 was chosen and incorporated into the Policy because it <br>held out the promise of increasing minority representation over the <br>roughly 18% that Bain anticipated would result on a strict merit- <br>selection basis. <br>     The testimony at trial amply confirms this suspicion.  <br>Superintendent Payzant testified that a "fair representation of a <br>cross-section of students" of the Boston public schools would <br>constitute a proper "reference point" for defining a "diverse mix" <br>of students.  The "cross-section" to which he referred is comprised <br>of the proportions of seventh- and ninth-grade black, Hispanic, <br>white, and Asian students enrolled in Boston's public high schools.  <br>Another "reference point" mentioned by Payzant  was the <br>"proportional representation" embodied by the Policy, which, given <br>his other testimony, is ultimately designed to move in the <br>direction of the same racial/ethnic distribution.  Other school <br>officials, such as Dr. Elizabeth Reilinger and Dr. Edwin Melendez, <br>testified to like effect, sometimes invoking the notion of <br>"underrepresentation." <br>     We do not question the School Committee's good <br>intentions.  The record depicts a body that is struggling valiantly <br>to come to terms with intractable social and educational issues.  <br>Here, however, the potential for harmful consequences prevents us <br>from succumbing to good intentions.  The Policy is, at bottom, a <br>mechanism for racial balancing   and placing our imprimatur on <br>racial balancing risks setting a precedent that is both dangerous <br>to our democratic ideals and almost always constitutionally <br>forbidden.  See Freeman v. Pitts, 503 U.S. 467, 494 (1992); Croson, <br>488 U.S. at 507.  Nor does the School Committee's reliance on <br>alleviating underrepresentation advance its cause.  <br>Underrepresentation is merely racial balancing in disguise   <br>another way of suggesting that there may be optimal proportions for <br>the representation of races and ethnic groups in institutions.  SeeLutheran Church, 141 F.3d at 352. <br>     It cannot be said that racial balancing is either a <br>legitimate or necessary means of advancing the lofty principles <br>recited in the Policy.  The closest the School Committee comes to <br>linking racial balancing to these ideals is by introducing the <br>concept of "racial isolation."  The idea is that unless there is a <br>certain representation of any given racial or ethnic group in a <br>particular institution, members of that racial or ethnic group will <br>find it difficult, if not impossible, to express themselves.  Thus, <br>the School Committee says, some minimum number of black and <br>Hispanic students   precisely how many, we do not know   is <br>required to prevent racial isolation. <br>     Fundamental problems beset this approach.  In the first <br>place, the "racial isolation" justification is extremely suspect <br>because it assumes that students cannot function or express <br>themselves unless they are surrounded by a sufficient number of <br>persons of like race or ethnicity.  Insofar as the Policy promotes <br>groups over individuals, it is starkly at variance with Justice <br>Powell's understanding of the proper manner in which a diverse <br>student body may be gathered.  See Bakke, 458 U.S. at 318.  <br>Furthermore, if justified in terms of group identity, the Policy <br>suggests that race or ethnic background determines how individuals <br>think or behave   although the School Committee resists this <br>conclusion by arguing that the greater the number of a particular <br>group, the more others will realize that the group is not <br>monolithic.  Either way, the School Committee tells us that a <br>minimum number of persons of a given race (or ethnic background) is <br>essential to facilitate individual expression.  This very position <br>concedes that the Policy's racial/ethnic guidelines treat <br>"individuals as the product of their race," a practice that the <br>Court consistently has denounced as impermissible stereotyping.  <br>Miller, 515 U.S. at 912. <br>     In the second place, the School Committee has failed to <br>give us a plausible reason why we should believe that racial <br>balancing of any type is necessary to promote the expression of <br>ideas or any of the other ideals referenced in the Policy.  We <br>assume for argument's sake   albeit with considerable skepticism   <br>that there may be circumstances under which a form of racial <br>balancing could be justified by concerns for attaining the goals <br>articulated by the Policy.  To justify something so antithetical to <br>our constitutional jurisprudence, however, a particularly strong <br>showing of necessity would be required.  The School Committee has <br>provided absolutely no competent evidence that the proportional <br>representation promoted by the Policy is in any way tied to the <br>vigorous exchange of ideas, let alone that, in such respects, it <br>differs significantly in consequence from, say, a strict merit- <br>selection process.  Nor has the School Committee concretely <br>demonstrated that the differences in the percentages of students <br>resulting from the Policy and other, constitutionally acceptable <br>alternatives are significant in any other way, such as students' <br>capacity and willingness to learn.  To the contrary, the School <br>Committee relies only on broad generalizations by a few witnesses, <br>which, in the absence of solid and compelling evidence, constitute <br>no more than rank speculation.  Given both the Constitution's <br>general prohibition against racial balancing and the potential <br>dangers of stereotyping, we cannot allow generalities emanating <br>from the subjective judgments of local officials to dictate whether <br>a particular percentage of a particular racial or ethnic group is <br>sufficient or insufficient for individual students to avoid <br>isolation and express ideas. <br>     This brings us full circle.  Although Justice Powell <br>endorsed diversity as potentially comprising a compelling interest, <br>he warned that a proper admissions policy would be such that if an <br>applicant "loses out" to another candidate, he will "not have been <br>foreclosed from all consideration for that seat simply because he <br>was not the right color or had the wrong surname."  Bakke, 458 U.S. <br>at 318.  The Policy does precisely what Justice Powell deemed <br>anathematic:  at a certain point, it effectively forecloses some <br>candidates from all consideration for a seat at an examination <br>school simply because of the racial or ethnic category in which <br>they fall.  That happened to Sarah Wessmann.  It violated the Equal <br>Protection Clause.  See People Who Care v. Rockford Bd. of Educ., <br>111 F.3d 528, 538 (7th Cir. 1997) (concluding that preventing <br>"children who are not beneficiaries of past discrimination" from <br>becoming cheerleaders solely because of their race is "a barefaced <br>denial of equal protection"). <br>     Again, let us be perfectly clear.  We are aware that two <br>of our sister courts of appeals have suggested that diversity may <br>never constitute a compelling governmental interest sufficient to <br>warrant race-based classifications.  See Lutheran Church, 141 F.3d <br>at 354; Hopwood, 78 F.3d at 948.  For purposes of resolving this <br>appeal, however, we need not speak definitively to that vexing <br>question.  Experience is "the life of the law," Justice Holmes <br>commented, and more probably ought to be said before this chapter <br>of constitutional inquiry is closed.  We conclude today only that <br>the School Committee's Policy does not meet the Bakke standard and, <br>accordingly, that the concept of "diversity" implemented by BLS  <br>does not justify a race-based classification. <br>               D.  Vestiges of Past Discrimination. <br>     The School Committee endeavors, in the alternative, to <br>uphold the Policy as a means of redressing the vestiges of past <br>discrimination.  The court below accepted this explanation.  SeeWessmann, 996 F. Supp. at 131.  We do not. <br>     Governmental bodies have a significant interest in <br>adopting programs and policies designed to eradicate the effects of <br>past discrimination.  See Miller, 515 U.S. at 920; Mackin v. City <br>of Boston, 969 F.2d 1273, 1275 (1st Cir. 1992).  Before embarking <br>on such projects, however, government actors must be able to muster <br>a "strong basis in evidence" showing that a current social ill in <br>fact has been caused by such conduct.  See Croson, 488 U.S. at 500.  <br>In giving meaning to the phrase "strong basis in evidence," we are <br>guided primarily by the Court's particularized analysis in Crosonand by the "body of appellate jurisprudence [that] has developed to <br>provide that label with meaningful content."  Engineering <br>Contractors Ass'n of S. Fla., Inc. v. Metropolitan Dade County, 122 <br>F.3d 895, 909 (11th Cir. 1997), cert. denied, 118 S. Ct. 1186 <br>(1998). <br>     The threshold problem that we confront in this instance <br>is that the School Committee disclaims the necessity for such <br>evidence.  Its disclaimer rests on the premise that a decree issued <br>in the quarter-century-old desegregation litigation mandates local <br>authorities to remedy any racial imbalance occurring in the school <br>system and thereby obviates the need for an independent showing of <br>causation.  This premise lacks force. <br>     The decree in question was entered in 1994 by Judge <br>Garrity, pursuant to our instructions in Morgan v. Nucci, 831 F.2d <br>313 (1st Cir. 1987).  The particular provision to which the School <br>Committee refers is entitled "Permanent Injunction."  It enjoins <br>the School Committee "from discriminating on the basis of race in <br>the operation of the public schools of the City of Boston and from <br>creating, promoting or maintaining racial segregation in any school <br>or other facility in the Boston public school system."  Nothing in <br>the plain language of this provision requires school officials to <br>undertake any affirmative action, let alone to adopt a race-based <br>classification (such as is contained in the Policy).  Perhaps more <br>important, the cited provision is not (as the School Committee <br>would have it) a mandatory injunction.  Rather, it operates as a <br>negative injunction, forbidding the defendants from engaging in the <br>acts that supported the original cause of action.  As long as <br>school officials do not engage in discrimination against minorities <br>  and there is no evidence that such conduct persists at BLS   they <br>have not violated the injunction. <br>     The School Committee's contention that racial imbalance, <br>without more, mandates action also is discordant with established <br>precepts of constitutional law.  Once there is a finding of <br>unitariness and the "affirmative duty to desegregate has been <br>accomplished," school authorities are not expected to make "year- <br>by-year adjustments of the racial composition of student bodies" <br>absent a "showing that either the school authorities or some other <br>agency of the State has deliberately attempted to fix or alter <br>demographic patterns to affect the racial composition of the <br>schools."  Swann, 402 U.S. at 32; see also Freeman, 503 U.S. at 494 <br>("Once the racial imbalance due to the de jure violation has been <br>remedied, the school district is under no duty to remedy imbalance <br>that is caused by demographic factors."). <br>     That ends this aspect of the matter.  We concluded over <br>ten years ago that Boston had restored the unitariness of student <br>assignments, see Nucci, 831 F.2d at 319-26, and there is no <br>contention here that any municipal actor has attempted <br>intentionally to subvert the demographic composition of BLS (or any <br>other school, for that matter).  Under such circumstances, neither <br>the Constitution nor the 1994 decree impose a duty on Boston's <br>school officials to ensure the maintenance of certain percentages <br>of any racial or ethnic group in any particular school. <br>     Because the 1994 decree turns out to be a blind alley, <br>the School Committee must identify a vestige of bygone <br>discrimination and provide convincing evidence that ties this <br>vestige to the de jure segregation of the benighted past.  SeeFreeman, 503 U.S. at 494.    To meet this challenge, the School <br>Committee cites an "achievement gap" between black and Hispanic <br>students, on the one hand, and white and Asian students, on the <br>other, and claims that this gap's roots can be traced to the <br>discriminatory regime of the 1970s and before. <br>     The scope of what social phenomena the law considers <br>vestiges of past discrimination presents an open question.  The <br>presumptive vestiges are the well-known factors that the Supreme <br>Court enumerated in Green v. County Sch. Bd., 391 U.S. 430, 435 <br>(1968) (mentioning student assignments, faculty, staff, facilities, <br>transportation, and extra-curricular activities).  Since Green, <br>federal courts have recognized other permutations, including <br>"quality of education."  Freeman, 503 U.S. at 492.  What this means <br>and how it is to be measured are difficult questions.  Rather than <br>entering that debate, we accept arguendo the School Committee's <br>position that, in principle, a documented achievement gap may act <br>as an indicator of a diminution in the quality of education.  Even <br>so, whether an achievement gap is a vestige of past discrimination <br>depends on whether there is satisfactory evidence of a causal <br>connection. <br>     The court below short-circuited this inquiry.  Citing <br>Judge Garrity's 1994 order, the court reasoned that, once there has <br>been a past judicial finding of institutional discrimination, no <br>more evidence is needed to justify a policy that employs racial <br>classifications.  See Wessmann, 996 F. Supp. at 131 (stating that <br>the 1994 order is a "manifestation" of the reality of vestiges of <br>past discrimination and that it alone provides a "compelling basis" <br>for adoption of the Policy).  The lower court was wrong. <br>     There are times when a history of discrimination, in <br>itself, may supply a powerful evidentiary predicate sufficient to <br>justify some race-conscious action.  See, e.g., Boston Police <br>Superior Officers Fed'n v. City of Boston, 147 F.3d 13 (1st Cir. <br>1998).  Nevertheless, such holdings do not hinge on the mere <br>existence of a past judicial finding, but, rather, on a variety of <br>considerations, including what transpired since the time of that <br>finding.  In Boston Police, for example, our detailed inquiry <br>revealed not only that discrimination had been a fact of the past, <br>but that it persisted in the Boston Police Department, and that <br>relatively little had been done to alleviate the situation at <br>certain levels.  See id. at 19-23.  The record showed, for <br>instance, that notwithstanding the existence of a consent decree, <br>progress toward the integration of the police force had been <br>"halting" and "modest."  Id. at 23.  The statistical evidence <br>supporting this view pertained not to a distant past, but to <br>present realities.  See id. at 21, 23.  In the final analysis, it <br>was the combination of all this evidence, and the detailed showing <br>that the effects of earlier discriminatory conduct continued to the <br>present, that underpinned our conclusions.  Withal, we took pains <br>to warn against indiscriminate reliance on history alone lest it <br>permit the adoption of remedial measures "ageless in their reach <br>into the past, and timeless in their ability to affect the future."  <br>Id. at 20-21 (citation and internal quotation marks omitted). <br>     In sum, whether past discrimination necessitates current <br>action is a fact-sensitive inquiry, and courts must pay careful <br>attention to competing explanations for current realities.  SeeFreeman, 503 U.S. at 495-96 (explaining that "though we cannot <br>escape our history, neither must we overstate its consequences in <br>fixing legal responsibilities").  The mere fact that an institution <br>once was found to have practiced discrimination is insufficient, in <br>and of itself, to satisfy a state actor's burden of producing the <br>reliable evidence required to uphold race-based action.  See id.at 496; Middleton v. City of Flint, 92 F.3d 396, 409 (6th Cir. <br>1996). <br>     Beyond history, the School Committee offers statistical <br>and anecdotal evidence to satisfy its burden of demonstrating a <br>strong evidentiary basis for the inauguration of remedial policies.  <br>The district court found the evidence favoring race-conscious <br>remedies to be adequate, but  the court's entire treatment of the <br>subject comprises a lone paragraph composed of unrelievedly <br>conclusory observations.  See Wessmann, 996 F. Supp. at 131.  In <br>the absence of specific findings, we could remand.  Given the time <br>constraints applicable to the case, we opt instead to exercise <br>plenary review, taking the statistical and anecdotal evidence in <br>the manner suggested by the School Committee.  See Vecios de <br>Barrio Uno, 72 F.3d at 989 (observing that appellate courts <br>ordinarily "should fill in blanks in the district court's account <br>when the record and the circumstances permit this to be done <br>without short-changing the parties"). <br>     The centerpiece of the School Committee's showing <br>consists of statistical evidence addressed to a persistent <br>achievement gap at the primary school level between white and Asian <br>students, on the one hand, and black and Hispanic students, on the <br>other.  One way to measure the achievement gap is in terms of <br>relative performance on standardized tests.  Over the years, whites <br>and Asians have scored significantly higher, on average, than <br>blacks and Hispanics.  The School Committee theorizes that, because <br>of this achievement gap, BLS receives fewer African-American and <br>Hispanic applicants than otherwise might be the case, and even in <br>comparison to this modest universe, an abnormally small number of <br>black and Hispanic students qualify for admission.  Accordingly, <br>the Committee concludes that the statistics documenting the <br>achievement gap, on their own, satisfy the "strong basis in <br>evidence" requirement. <br>     In mounting this argument, the School Committee relies <br>heavily on a line of cases addressing affirmative action plans <br>designed to remedy vestiges of past employment discrimination.  <br>See, e.g., Peightal v. Metropolitan Dade County, 26 F.3d 1545 (11th <br>Cir. 1994); Stuart v. Roache, 951 F.2d 446 (1st Cir. 1991).  This <br>reliance is mislaid.  Fundamental differences distinguish the <br>statistical inquiry involved in the employment discrimination <br>context from the one proposed by the School Committee here.  In <br>employment discrimination cases, we know ex ante the locus of <br>discrimination:  it is the barrier to entry.  Based on that <br>premise, an appropriate statistical analysis compares the number of <br>qualified minority applicants with those who gain entrance.  The <br>greater the disparity, the stronger the inference that <br>discrimination is the cause of non-entry.  See Croson, 488 U.S. at <br>501-02; Stuart, 951 F.2d at 451. <br>     In this case, the "barrier to entry" comparable to those <br>in the employment discrimination cases is BLS's requirement of an <br>entrance examination and the resultant composite score   and no one <br>(least of all, the School Committee) claims that the examination or <br>any component thereof is discriminatory in operation or effect, or <br>that it would be discriminatory if it were used as the sole <br>criterion for admission.  Such a claim was central to our <br>conclusion in Stuart, 951 F.2d at 451, and it is totally absent <br>here.  What is more, any such claim would make precious little <br>sense in the context of the School Committee's argument, for <br>standardized achievement tests (a component of the entrance <br>examination) are the primary objective measurement of the asserted <br>achievement gap. <br>     With the admissions process eliminated as an illegitimate <br>barrier to entry, the achievement gap statistics, by themselves, <br>must specifically point to other allegedly discriminatory conduct <br>in order to suggest a causal link between those discriminatory acts <br>and the achievement gap.  Unlike the focused inquiry characteristic <br>of the employment discrimination cases, however, the raw <br>achievement gap statistics presented in this case do not by <br>themselves isolate any particular locus of discrimination for <br>measurement.  Without such a focus, the achievement gap statistics <br>cannot possibly be said to measure the causal effect of any <br>particular phenomenon, whether it be discrimination or anything <br>else.  Cf. McCleskey v. Kemp, 481 U.S. 279, 294-95 (1987) <br>(contrasting legitimacy of inferences drawn from focused use of <br>statistical methods in employment discrimination and venire- <br>selection cases, on the one hand, with those drawn from application <br>of general statistics to explain source of decisions in specific <br>trials and sentencing proceedings).  As such, the achievement gap <br>statistics, by themselves, do not even eliminate the possibility <br>that they are caused by what the Court terms "societal <br>discrimination."  Shaw v. Hunt, 517 U.S. 899, 909-10 (1996); seealso Coalition to Save Our Children v. State Bd. of Educ., 90 F.3d <br>752, 776-78 (3d Cir. 1996) (affirming findings that poor <br>performance and achievement gap were caused by socioeconomic <br>factors unrelated to past discrimination).  To be sure, gross <br>statistical disparities at times may suffice to satisfy a state <br>actor's burden of production.  See Croson, 488 U.S. at 501.  But <br>the achievement gap statistics adduced here fail to do so because <br>it is unclear exactly what causative factors they measure. <br>     The Croson Court relied on precisely this reasoning when <br>it concluded, in the contractor context, that low minority <br>membership in a local trade association "standing alone, cannot <br>establish a prima facie case of discrimination."  Id. at 503.  The <br>Court reasoned that there could be "numerous explanations for this <br>dearth of minority participation, including past societal <br>discrimination."  Id.  Therefore, if such statistics are to be at <br>all probative of discrimination, they must link cause and effect <br>variables in a manner which would permit such an inference.  Seeid. ("For low minority membership in these associations to be <br>relevant, the city would have to link it to the number of local <br>MBEs eligible for membership.  If the statistical disparity between <br>eligible MBEs and MBE membership were great enough, an inference of <br>discriminatory exclusion could arise."). <br>     We do not propose that the achievement gap bears no <br>relation to some form of prior discrimination.  We posit only that <br>it is fallacious to maintain that an endless gaze at any set of raw <br>numbers permits a court to arrive at a valid etiology of complex <br>social phenomena.  Even strong statistical correlation between <br>variables does not automatically establish causation.  See Tagatzv. Marquette Univ., 861 F.2d 1040, 1044 (7th Cir. 1988); Ste. Marie <br>v. Eastern R.R. Ass'n, 650 F.2d 395, 400 (2d Cir. 1981) (Friendly, <br>J.).  On their own, the achievement gap statistics here do not even <br>identify a variable with which we can begin to hypothesize the <br>existence of a correlation. <br>     The School Committee attempts to compensate for this <br>shortcoming by pointing to certain alleged phenomena that it claims <br>constitute substantial causes of the achievement gap.  Chief among <br>these is "low teacher expectations" vis--vis African-American and <br>Hispanic students, a condition which the School Committee argues is <br>an attitudinal remnant of the segregation era.  To show the <br>systemic nature of this alleged phenomenon, the School Committee <br>leans heavily on the testimony of Dr. William Trent.  Dr. Trent, a <br>sociologist, identified teachers' low expectations of African- <br>American and Hispanic students as a significant factor underlying <br>the achievement gap in the Boston public schools.  He based his <br>conclusion on an analogy that he drew from studies he had performed <br>in the Kansas City school system, including a "climate survey" of <br>teacher attitudes and a multiple regression analysis designed to <br>determine whether the low expectations reflected in teachers' <br>answers to the questions posed in the climate survey might <br>partially explain the achievement gap.  Based on these materials, <br>Dr. Trent had concluded that, in Kansas City,  teacher "efficacy" <br>  a term of art referring to a teacher's success in encouraging <br>pupils to succeed   correlated with higher achievement test scores. <br>     One difficulty with Dr. Trent's testimony is that it <br>relies on evidence from one locality to establish the lingering <br>effects of discrimination in another.  Dr. Trent noted, for <br>example, that data he examined from the Boston public schools <br>revealed patterns "consistent with" his findings concerning the <br>Kansas City schools.  Croson, however, reaffirmed the Court's <br>longstanding teaching that we must staunchly resist attempts to <br>substitute speculation about correlation for evidence of causation.  <br>See Croson, 488 U.S. at 504 ("We have never approved the <br>extrapolation of discrimination in one jurisdiction from the <br>experience of another.") (citing Milliken v. Bradley, 418 U.S. 717, <br>746 (1974)).  In this context, the Court emphasized that although <br>government may adopt race-conscious remedies when there is evidence <br>of lingering vestiges, it "must identify that discrimination, <br>public or private, with some specificity" before it adopts the <br>remedy.  See id. at 504.  At the very least, this would require <br>solid evidence that Boston teachers have low expectations of <br>minority students, and that these low expectations are related in <br>a statistically significant way to the achievement gap. <br>     Dr. Trent, however, never conducted a "climate survey" <br>for the Boston school system.  His conclusions for Boston were <br>based only on a review of statistical data documenting the <br>achievement gap  (basically, the statistics regarding achievement <br>test results and differing application and enrollment rates), <br>statistics concerning teacher seniority, and anecdotal evidence <br>about teacher attitudes supplied by school officials.  When asked <br>on cross-examination whether the data that he relied on for his <br>conclusions anent teacher attitudes were scientifically gathered, <br>Dr. Trent responded in the negative.  Dr. Trent thus freely <br>conceded that the data he used was not of the quality necessary to <br>satisfy the methodological rigors required by his discipline.  <br>Because Dr. Trent failed to follow his own prescribed scientific <br>methodology for collecting data on the one issue central to his <br>hypothesis about achievement gap causation, the trial court could <br>not credit his conclusions. <br>     An "opinion has a significance proportioned to the <br>sources that sustain it."  Petrogradsky Mejdunarodny Kommerchesky <br>Bank v. National City Bank, 253 N.Y. 23, 25, 170 N.E. 479, 483 <br>(1930) (Cardozo, J.).  When scientists (including social <br>scientists) testify in court, they must bring the same intellectual <br>rigor to the task that is required of them in other professional <br>settings.  See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 <br>U.S. 579 (1993); Braun v. Lorillard, Inc., 84 F.3d 230, 234 (7th <br>Cir. 1996); see also People Who Care, 111 F.3d at 537 (declaring, <br>in reviewing admissibility of social science evidence purporting to <br>quantify causes of achievement gap, that "the methods used by the <br>expert to derive his opinion [must] satisfy the standards for <br>scientific methodology that his profession would require of his <br>out-of-court research").  The only excuse that Dr. Trent proffered <br>for his failure to follow proper protocols was that a thorough <br>study would have required more time than he had available.  That is <br>unacceptable.  See Braun, 84 F.3d at 234.  An expert witness can <br>only deviate from accepted methods of scientific inquiry in ways <br>that are consistent with the practices and usages of the scientific <br>community. <br>     The shortcomings in Dr. Trent's testimony largely relate <br>to his failure to gather data systematically and point up the <br>pitfalls that the School Committee invited by failing to validate <br>the Policy in advance.  Dr. Trent's charge was to trace the causal <br>relationship, if any, between teacher attitudes and poor student <br>performance.  His failure to obtain reliable data disabled him from <br>taking even the first step, for he could not validly establish <br>whether Boston teachers' attitudes in fact were discriminatory, let <br>alone show that they caused (or even significantly contributed to) <br>the achievement gap.  This first step is a cornerstone of the <br>entire research project; in its absence, Dr. Trent could not <br>legitimately eliminate other variables (including societal <br>discrimination) that might explain the achievement gap in the <br>Boston public schools.  See Croson, 488 U.S. at 503; People Who <br>Care, 111 F.3d at 537.  It follows inexorably that, with no <br>methodological support, he could not produce a meaningful analysis <br>of causation and, accordingly, his conclusions cannot bear the <br>weight of the School Committee's thesis.  See Mid-State Fertilizer <br>Co. v. Exchange Nat'l Bank, 877 F.2d 1333, 1339 (7th Cir. 1989) <br>("An expert who supplies nothing but a bottom line supplies nothing <br>of value to the judicial process."). <br>     Dr. Trent's reliance on anecdotal evidence fares no <br>better.  As a general matter, anecdotal evidence is problematic <br>because it does not tend to show that a problem is pervasive.  SeeCoral Constr. Co. v. King County, 941 F.2d 910, 919 (9th Cir. 1991) <br>("While anecdotal evidence may suffice to prove individual claims <br>of discrimination, rarely, if ever, can such evidence show a <br>systematic pattern of discrimination necessary for the adoption of <br>an affirmative action plan.").  Thus, even though anecdotal <br>evidence may prove powerful when proffered in conjunction with <br>admissions or valid statistical evidence, anecdotal evidence alone <br>can establish institutional discrimination only in the most <br>exceptional circumstances.  See Engineering Contractors Ass'n, 122 <br>F.3d at 925-26 (collecting cases). <br>     This case falls well within the general rule rather than <br>the long-odds exception to it.  The most specific testimony <br>regarding low teacher expectations came from Deputy Superintendent <br>Janice Jackson, whom the district court qualified as an expert <br>witness.  At one point in her career, Deputy Superintendent Jackson <br>had received some training related to improving interactions <br>between teachers and students (a program known as TEASA, an acronym <br>for "teacher expectation and student achievement") by dispelling <br>teachers' "unconscious biases."  Without disparaging Ms. Jackson's <br>credentials, we reject the contention that her observations, as <br>presented at trial, provide any justification for a conclusion that <br>a statistically meaningful number of Boston school teachers have <br>low expectations of minority students. <br>     Deputy Superintendent Jackson testified to two sets of <br>observations.  The first occurred before she joined the school <br>system.  She spent three months in classrooms as a "blind <br>researcher," making certain observations for an unspecified <br>research project.  In the process, she apparently visited six or <br>seven schools (although she could recall only two by name).  She <br>testified that, during this time, she observed teachers treat <br>minority and non-minority students differently.  The differential <br>treatment included calling on one set of pupils but not on another, <br>disparate reprimands for the same behavior, and failure to push for <br>"higher order thinking."  Her second set of observations occurred <br>once she became deputy superintendent.  Here, her testimony is <br>unrelievedly general.  Although she visited numerous schools during <br>this interval, her testimony is silent as to the purpose of these <br>visits.  It is equally silent as to crucial details, e.g., how many <br>classrooms she visited or how many teachers she observed. <br>     The short of it is that, to the extent that Ms. Jackson <br>purposed to testify as an expert, she was obligated to present her <br>data and her methodology with some specificity.  In lieu of <br>specifics, Ms. Jackson offered only her unsubstantiated <br>recollection of past events.  Croson reminds us that, in <br>considering the legitimacy of race classifications, we must not <br>blindly defer to the other branches' assurances that a particular <br>condition exists.  See Croson, 488 U.S. at 501-02; see also Hayesv. North State Law Enf. Officers' Ass'n, 10 F.3d 207, 214 (4th Cir. <br>1993) (applying Croson and concluding that police chief's testimony <br>did not constitute strong basis in evidence to justify race- <br>conscious remedy even though the testimony was "based on his <br>significant experience in the field of law enforcement").  Because <br>Ms. Jackson was unable to quantify her observations in any manner <br>whatsoever, the district court could not validly conclude that the <br>number of "problem" teachers she observed was statistically <br>significant.  Indeed, Dr. Trent was unable to utilize these <br>observations to conduct any statistical analysis to provide a <br>meaningful account of achievement gap causation.  This inability <br>illustrates one reason why anecdotal evidence, which includes <br>testimony based on significant personal experience, rarely suffices <br>to provide a strong basis in evidence. <br>     The remaining evidence upon which the School Committee <br>and the dissent relies   most notably the testimony of BLS <br>Headmaster Michael Contompasis and Dr. Melendez   likewise <br>exemplifies the shortcomings of anecdotal evidence.  One cannot <br>conclude from the isolated instances that these witnesses recounted <br>that low teacher expectations constitute a systemic problem in the <br>Boston public schools or that they necessarily relate to the dejure segregation of the past. <br>     Similarly unpersuasive are the School Committee's broad <br>generalizations about socialization.  Superintendent Payzant, for <br>example, testified that he believed that teachers who started <br>working in the era of dual school systems (who comprise <br>approximately 28 % of current faculty) had been "socialized and <br>shaped" by the thoughts and attitudes of the prior period.  This <br>may be so, but he gave no empirical evidence to confirm his <br>conclusion.  While the idea of "socialization" may be <br>intellectually elegant, courts must insist on seeing concrete <br>evidence.  Without such substantiation, Payzant's testimony is no <br>more compelling than the conclusory statements of the Richmond city <br>councillor rejected as insufficient by the Supreme Court in Croson, <br>488 U.S. at 500-01. <br>     To the extent that the School Committee notes other <br>causal factors or indicia of discrimination, they, too, are  <br>insufficient either to show ongoing vestiges of system-wide <br>discrimination or to justify a race-conscious remedy.  For <br>instance, pointing to the instability of leadership at the <br>superintendent level, the School Committee suggests   so far as we <br>can gather; the argument is neither developed nor clear   that it <br>led to the absence of a standardized curriculum, which in turn has <br>contributed to the achievement gap.  If the argument is that the <br>superintendent's office had a revolving door and thereby caused the <br>achievement gap, then we see nothing that helps advance the <br>contention that the achievement gap is a vestige of past <br>discrimination.  If the argument is that the superintendent's <br>office has tacitly endorsed disparate curricula which in turn have <br>caused the achievement gap, then the School Committee has provided <br>us with absolutely no evidentiary basis to conclude that this is a <br>consequence of discrimination; among other things, it has failed <br>either to identify which curricula were discriminatory or to <br>explain why they were so.  It likewise has failed to identify the <br>schools that adopted the discriminatory curricula in order to <br>suggest a relationship between race and the existence of <br>substandard school programs.  Thus, it is impossible to tell, even <br>on the assumption that differing curricula caused the achievement <br>gap, whether this was a consequence of discriminatory conduct.  In <br>a nutshell, there is not a shred of evidence in the record <br>supporting the contention that unstable leadership and the absence <br>of uniform curriculum standards bore any relationship either to <br>discrimination in the Boston schools or to the existence of the <br>achievement gap. <br>     We add an eschatocol of sorts.  Even if the School <br>Committee had proven the requisite connection between the Policy <br>and the vestiges of past discrimination, the Policy could not <br>endure.  When authorized by the Constitution, race-conscious <br>remedies not only must respond to a compelling governmental <br>interest, but also must be narrowly tailored to rectify the <br>specific harms in question.  See Croson, 488 U.S. at 493 <br>(explaining that any race-conscious means adopted to remedy past <br>discrimination must be so narrowly tailored that there is "little <br>or no possibility that the motive for the classification was <br>illegitimate racial prejudice or stereotype").  Under this test, <br>the Policy sweeps too broadly. <br>     We limit our remarks in this regard to three points.  <br>First, since there is no discrimination at entry to BLS, we fail to <br>see how the adoption of an admissions policy that espouses a brand <br>of proportional representation is designed to ameliorate the harm <br>that allegedly has occurred (a system-wide achievement gap at the <br>primary school level).  Indeed, when Deputy Superintendent Jackson <br>was asked whether the flexible racial/ethnic guidelines in any way <br>affect low teacher expectations, she responded that it was a <br>"complicated question to answer" because, given the relatively <br>recent implementation of the guidelines, there had "not even been <br>an opportunity to check that."  If a high-level school official <br>cannot confirm that a race-conscious remedy will alleviate the <br>purported major cause of a remnant of discrimination, we do not <br>comprehend how that means can be narrowly tailored. <br>     Second, the increased admission of black and Hispanic <br>students cannot be viewed as partial compensation for injustices <br>done at the primary school level.  This is so because the victims <br>of the achievement gap are public school students, and they are the <br>ones who ought to be the focus of the remedy.  The Policy does not <br>focus in this direction, for many of the black and Hispanic <br>students admitted under it come from private or parochial schools.  <br>Thus, the Policy is not sufficiently particularized toward curing <br>the harm done to the class of actual victims.  See Podberesky v. <br>Kirwan, 38 F.3d 147, 158-59 (4th Cir. 1994).  After all, there is <br>no reason to assume that granting a remedy to one member of a <br>particular race or ethnic group comprises a condign remedy for harm <br>done to another, especially when those who have been harmed are <br>easily identifiable and still within the institution that allegedly <br>suffers from the vestiges of past discrimination. <br>     Third, if palliating the effects of past discrimination <br>is the ostensible justification for the Policy, then the Policy, on <br>its face, has been crafted in puzzling ways.  Suppose that in a <br>particular year a group of Hispanic students does very well, such <br>that they cluster between ranks 45 and 90, but that the Hispanic <br>student population in the RQAP is sparse.  Suppose further that <br>whites and Asians form a significant majority of the RQAP.  There <br>is then a likelihood that, by reason of the Policy, a number of the <br>Hispanic students   archetypal victims of discrimination   will be <br>displaced by white and Asian students.  Nor need we resort to <br>hypotheticals to see such effects.  At the O'Bryant School, the <br>Policy's flexible racial/ethnic guidelines resulted in the <br>rejection from the 1997 ninth-grade entering class of two Hispanic <br>students in favor of a white student.  Then, too, given the School <br>Committee's position that Asian students have not been victims of <br>discrimination, we are unable to comprehend the remedial purpose of <br>admitting Asian students over higher-ranking white students, as <br>happened in the case of Sarah Wessmann.  This brings us back to the <br>point of our beginning:  in structure and operation, the Policy <br>indicates that it was not devised to assuage past harms, but that <br>it was simply a way of assuring racial/ethnic balance, howsoever <br>defined, in each examination school class.  See Croson, 488 U.S. at <br>506 ("The random inclusion of racial groups that, as a practical <br>matter, may never have suffered from discrimination in the <br>construction industry in Richmond suggests that perhaps the city's <br>purpose was not in fact to remedy past discrimination.").  The <br>Constitution forbids such a focus. <br>III.  CONCLUSION <br>     We do not write on a pristine page.  The Supreme Court's <br>decisions in Croson and Adarand indicate quite plainly that a <br>majority of the Justices are highly skeptical of racial preferences <br>and believe that the Constitution imposes a heavy burden of <br>justification on their use.  Croson, in particular, leaves no doubt <br>that only solid evidence will justify allowing race-conscious <br>action; and the unsystematic personal observations of government <br>officials will not do, even if the conclusions they offer sound <br>plausible and are cloaked in the trappings of social science.    <br>See Hayes, 10 F.3d at 214 (noting the dangers of relying on <br>"subjective evidence" to justify race-conscious policies); see alsoWittmer, 87 F.3d at 919 (reminding us that "common sense <br>undergirded the pernicious discrimination against blacks now <br>universally regretted"). <br>     Our dissenting brother's valiant effort to read into <br>Croson a broad discretion for government entities purporting to <br>ameliorate past discrimination strikes us as wishful thinking.  The <br>Croson Court's own reference to the need for a "searching judicial <br>inquiry," 488 U.S. at 493, and its rejection of Justice Marshall's <br>position, see id. at 494-95; id at 535-36 (Marshall, J., <br>dissenting), both suggest an attitude that is antipathetic to those <br>who yearn for discretion.  And unless and until the Justices <br>reconfigure their present doctrine, it is the job of judges in <br>courts such as this to respect the letter and spirit of the Supreme <br>Court's pronouncements. <br>     We need go no further.  While we appreciate the <br>difficulty of the School Committee's task and admire the values <br>that it seeks to nourish, noble ends cannot justify the deployment <br>of constitutionally impermissible means.  Since Boston Latin <br>School's admissions policy does not accord with the equal <br>protection guarantees of the Fourteenth Amendment, we strike it <br>down.  The judgment of the district court must therefore be <br>reversed. <br>     We are mindful that Henry Wessmann asks not only that we <br>declare the Policy unconstitutional   which we have done   but also <br>that his daughter, Sarah, be admitted to BLS forthwith.  The School <br>Committee, which has vigorously defended the Policy, has tacitly <br>conceded that, if its defense fails, Sarah should be allowed to <br>enroll at BLS.  The circumstances of this case are unusual, for the <br>school year is under way and Sarah Wessmann   who already has spent <br>elsewhere the first year and some months of what normally would be <br>a four-year matriculation at BLS   does not have the luxury of time <br>that a remand would entail.  We therefore direct the district court <br>to enter a judgment, in appropriate form, that, inter alia, <br>commands Sarah's admission to BLS without delay. <br> <br>Reversed. <br> <br> <br> <br> <br> <br> <br>                     Separate Opinions Follow  

     BOUDIN, Circuit Judge, concurring.  Judge Selya's opinion <br>demonstrates that the school committee plan under attack here does <br>involve racial preference, whatever the complexity of the plan and <br>subtlety in expression.  Yet, this court concluded more than a <br>decade ago that purposeful discrimination had ended so far as <br>assignments were concerned and that the school committee was <br>proceeding in good faith.  See Morgan v. Nucci, 831 F.2d 313, 326 <br>n.19 (1st Cir. 1987).  To survive, the school committee's plan must <br>serve a compelling state interest and be narrowly tailored to <br>achieve that interest.  Croson, 488 U.S. at 505-08; Wygant, 476 <br>U.S. at 274. <br>     The foremost interest urged by the school committee is <br>diversity, a ground that may or may not prove "compelling" to the <br>Supreme Court.  But even if diversity were an adequate ground, it <br>has not been shown that this plan is necessary to achieve it.  The <br>record shows that minorities will be included in BLS in substantial <br>numbers without the plan.  Op. at 20-21.  If some specific higher <br>level is needed to achieve diversity of views and backgrounds, this <br>has not been demonstrated in the record. <br>     The alternative interest urged on this record is that the <br>plan is necessary to remedy the residual effects of admitted past <br>discrimination.  The remnants on which the school committee relies <br>are supposed teacher attitudes, specifically, a lower expectation <br>of achievement by minorities in the Boston public schools.  These <br>attitudes are said to be linked backward in time to mind-sets <br>developed during a regime of purposeful discrimination and forward <br>to explain poorer performance by minority public-school students on <br>the tests necessary for entry into the elite public schools.  The <br>remedy is the racial preference embodied in the plan. <br>     In theory, low expectations could be caused by past <br>discrimination and could have some effect on current performance.  <br>But here the quality of the supporting evidence is far from <br>overwhelming.  In this case, there is no study of Boston schools, <br>only one for Kansas City; and the evidence as to Boston, while <br>offered through experts, is largely based on general statements or <br>anecdote.  It is open to question whether such evidence can <br>withstand Croson's requirement of a "searching judicial inquiry."  <br>Croson, 480 U.S. at 493. <br>     In all events, the plan fails to meet the Supreme Court's <br>narrow tailoring requirement.  The plan is clearly overbroad when <br>judged by the past-discrimination rationale; it provides <br>preferences to minority groups that were never discriminated <br>against by the Boston School authorities or affected by lowered <br>expectations of public school teachers (Asians and private school <br>African-American applicants in particular).  See Croson, 488 U.S. <br>at 506; Wygant, 476 U.S. at 284 n.13.  There is some reason to <br>think that African-American private school applicants rather than <br>public school students, may well be the principal beneficiary of <br>the preferences created by the plan. <br>     There is also no indication that the plan will do <br>anything to alter the expectations of public-school teachers, which <br>are claimed to be the source of the residual discrimination.  One <br>of the school committee's own experts, asked to say whether or how <br>the plan would resolve this problem, was unable to supply an <br>answer.  Op. at 49.  Another school committee expert, answering a <br>direct question from the judge as to whether the plan's racial <br>preference "attacked the problem of teacher attitude," essentially <br>conceded that it did not.  Tr. 6-126 to -127.  These admissions <br>suggest a further misfit between plan and remedy. <br>     Finally, because the plan does not address the supposed <br>cause of the problem, teacher attitudes formed in the ancien <br>regime, the same arguments now urged to sustain the plan will be <br>available for the indefinite future.  Teachers retire slowly and <br>themselves teach those who succeed them.  The plan thus creates <br>just the kind of "timeless" racial preferences of concern to the <br>Supreme Court.  Wygant, 476 U.S. at 276; see Croson, 488 U.S. at <br>498, 505; cf. United States v. Paradise, 480 U.S. 149, 178 (1987). <br>     None of these defects of fit is surprising because, at <br>bottom, the plan is not seriously suited to be a temporary measure <br>to remedy low teacher expectations that are the supposed remnants <br>of discrimination.  It is instead a thoughtful effort to assist <br>minorities historically disadvantaged while, at the same time,  <br>preserving the essentially competitive character of the schools in <br>question.  So viewed, there is no misfit between problem and <br>remedy; the only misfit is with Croson's requirements for the use <br>of racial preferences, requirements that only the Supreme Court can <br>relax. <br> <br> <br> <br> <br> <br> <br> <br>                    Dissenting Opinion Follows  

     LIPEZ, Circuit Judge, dissenting. Under the Equal <br>Protection Clause of the Fourteenth Amendment, all racial or ethnic <br>classifications by government actors are highly suspect and will be <br>upheld only if they withstand strict judicial scrutiny. To meet the <br>strict scrutiny standard, a challenged racial classification must <br>serve a compelling governmental interest and must be narrowly <br>tailored to achieve that goal. See Adarand Constructors, Inc. v. <br>Pea, 515 U.S. 200, 224-25 (1995). The Boston School Committee <br>argues that the Boston Latin admissions program serves two <br>compelling interests: promoting diversity in the public schools and <br>remedying the vestiges of past discrimination. The majority rejects <br>both arguments. Although I have reservations about the Committee's <br>diversity argument on the facts of this case, I have none about its <br>remedial argument. The district court properly found that the <br>Boston School Committee had a strong basis in evidence for <br>determining that the Boston Latin admissions program serves a <br>compelling government interest in remedying the effects of prior <br>discrimination, and that the program is narrowly tailored to <br>achieve that goal.  <br>     I will explain more fully my disagreement with the <br>majority by dividing my opinion into four parts: a summary of the <br>Boston schools desegregation litigation that is particularly <br>relevant to the development of the Boston Latin admissions program; <br>a description of the proper legal framework for analyzing the <br>evidence of the remedial interest; an analysis of the evidence <br>establishing that interest; and an analysis of the program's narrow <br>tailoring. <br>                               I. <br>Some Relevant History <br>     Although the majority opinion provides an excellent <br>background statement placing the present dispute in perspective, I <br>wish to offer some additional background which more fully reveals <br>the antecedents of the Boston Latin admissions program in the long <br>history of court supervised desegregation of the Boston school <br>system. That court-supervised desegregation began in 1974, when the <br>district court found that the Boston School Committee had engaged <br>in "affirmative acts [which] intentionally created or maintained <br>racial segregation."  Morgan v. Hennigan, 379 F. Supp. 410, 427 (D. <br>Mass. 1974) (Morgan I). The Committee's acts included the <br>manipulation of facilities utilization, new school construction, <br>and redistricting to preserve distinctively white or minority <br>districts. See id. at 425-41. The district court noted that the <br>Committee was particularly successful in maintaining a segregated <br>school system through the establishment and use of "feeder <br>patterns" for students going from primary schools into the high <br>schools.  The primary schools were segregated in part because their <br>districts were geographically drawn and based on residentially- <br>segregated neighborhoods. As the high schools were far fewer in <br>number than the primary schools, and each high school drew on <br>several geographic primary school districts, the high schools might <br>naturally have been more racially balanced than the primary <br>schools. However, under the Committee's skewed feeder patterns, <br>students were assigned from white "junior high" schools into <br>predominantly white high schools beginning with the tenth grade, <br>and from African-American "middle" schools into predominantly <br>African-American high schools beginning with the ninth grade. Seeid. at 441-49. In the limited cases where students were allowed to <br>transfer voluntarily into schools with vacant seats, the Committee <br>manipulated the transfer program, alternately liberalizing it to <br>allow whites to transfer out of African-American schools, or <br>controlling it to keep African-Americans from transferring out of <br>African-American schools. See id. at 449-56. The district court <br>also found that the Committee took steps with regard to faculty and <br>staff assignment systemwide, and admission to the selective <br>citywide schools, in order to preserve the segregated status quo. <br>See id. at 456-69. <br>     Relying on the presumptive logic set forth in Keyes v.School District No. 1, 413 U.S. 189 (1973), the district court <br>concluded that pervasive de jure segregation throughout the Boston <br>public school system established a "prima facie case of unlawful <br>segregative design" in the examination schools. Morgan I, 379 F. <br>Supp. at 467, quoting Keyes, 413 U.S. at 208.  This presumption was <br>not rebutted. See Morgan I, 379 F. Supp. at 467-68. Although little <br>evidence was presented on the causes of the exam schools' <br>imbalanced racial composition, the court attributed part of the <br>disparity to the tying of admission to achievement (as opposed to <br>aptitude) test scores.  The court also noted that the "advanced <br>work classes" that prepared public school fifth and sixth graders <br>for the examination schools were segregated. See id. at 433, 484 <br>n.16. On appeal, we summarized the situation as follows: "The <br>examination schools are segregated because black children fare <br>worse on the entrance examinations than whites. These children are <br>products of the segregated elementary classes which constituted <br>'tracks' to the examination schools and were more than 80% <br>white. . . . Thus, the segregation of the lower schools had <br>inevitable consequences for the examination . . . schools . . . ." <br>Morgan v. Kerrigan, 509 F.2d 580, 594 n.20 (1st Cir. 1974) <br>(affirming Morgan I). <br>     In the subsequent remedial phase of the desegregation <br>litigation, the court considered a proposal to use the SSAT, an <br>aptitude rather than an achievement test, as part of the admissions <br>process for the exam schools. This test would presumably reflect <br>less of the disparity in elementary education among applicants <br>resulting from the segregation of their schools. See  Morgan v. <br>Kerrigan, 401 F. Supp. 216, 243-44 (D. Mass. 1975) (Morgan II). <br>Although the district court also noted that there had been <br>discussion about using "the median score as a floor for <br>admissions," id. at 243, the district court declined to set an <br>"arbitrary" examination-score minimum for the purpose of promoting <br>desegregation of the examination schools, imploring the parties to <br>work towards solutions themselves.  Id. at 244.  The then- <br>Headmaster of Boston Latin School stated in an affidavit that, in <br>his practical experience, the median score was a good minimum <br>standard for selecting students able to succeed at Boston Latin.  <br>Id. at 243.  While the Headmaster "concede[d] that this standard <br>[was] an assessment based on his experience, not on racial data or <br>studies that would show that students scoring below that mark would <br>be unable to learn and succeed within the Latin schools' program," <br>id., this standard was accepted by the parties and has survived to <br>this day as the conclusion that the top half of the applicant pool <br>is "qualified" to succeed at Boston Latin. <br>     As a remedy for its finding of discrimination by the <br>Boston School Committee, the court ultimately mandated that "[a]t <br>least 35% of each of the entering classes at Boston Latin School, <br>Boston Latin Academy and Boston Technical High in September 1975 <br>shall be composed of black and Hispanic students."  Id. at 258. In <br>addition, the court imposed the following requirements: <br>     The School Department shall also institute and <br>     conduct programs (a) to make all students in <br>     the system aware of the admission requirements <br>     and type of instruction offered at the <br>     examination schools, and (b) to recruit black <br>     and Hispanic applicants to the examination <br>     schools in future years. <br> <br>          Any tutorial programs given to prepare <br>     students for entrance examinations shall be <br>     conducted on a desegregated basis, as shall <br>     advanced work classes (if they are to be <br>     continued). Any enrichment and remedial <br>     programs for students admitted to or enrolled <br>     in the examination schools shall be available <br>     and conducted on a desegregated basis. There <br>     shall be no tracking of students within the <br>     examination schools which results in racially <br>     segregated classes. <br> <br>Id. at 258-59. In reviewing the district court ruling, we concluded <br>that the 35% floor was not an impermissible racial quota because <br>"overall racial composition [of the system was ordered] to be used <br>as a starting point in designing a school desegregation plan. This <br>approach is specifically approved in Swann [Swann v. Charlotte- <br>Mecklenburg Board of Education, 402 U.S. 1 (1971)]." Morgan v. <br>Kerrigan, 530 F.2d 401, 423 (1st Cir. 1976) (affirming Morgan II). <br>     The issue of racial composition was considered especially <br>important in the examination schools. For most other schools in the <br>system, the district court set minority enrollment targets only <br>within a broad statistical range. The racial/ethnic composition of <br>any individual school was allowed a 25% deviation from the average <br>racial/ethnic composition of the public school system as a whole. <br>Such a wide margin of error was not necessary or appropriate for <br>citywide schools (such as the examination schools) for two <br>reasons. First, the practical problems of implementing more <br>complete desegregation in these schools were less significant than <br>in the non-citywide schools, where additional busing was the main <br>instrument for additional desegregation of neighborhood-based <br>schools.  Although busing posed a hardship for students who might <br>otherwise have attended schools near their homes, most students <br>attending citywide schools were already being bused to school. <br>Second, minority enrollment at the citywide schools had to reflect <br>more accurately the racial/ethnic composition of the system because <br>the citywide schools were viewed as valuable vehicles for voluntary <br>desegregation that could not have "[s]ignificant departures" from <br>the overall composition and still attract students seeking an <br>integrated learning environment. See 530 F.2d at 423. The target <br>figure for overall African-American/Hispanic levels at the exam <br>schools, 35%, was set slightly lower than the percentage of <br>African-Americans and Hispanics in the system as a whole because <br>there was a significant population of Asians at the exam schools <br>already, bringing total levels of "black and other minority" <br>enrollment closer to the 44% rough target set for other citywide <br>schools. See Morgan II, 401 F. Supp. at 244. <br>     In 1987, some twelve years after the initial court <br>desegregation orders, we held that court supervision of student <br>assignments in the Boston schools should end in light of the <br>Committee's good faith, the State Board's findings of compliance, <br>and the general notion that the maximum practicable level of <br>desegregation had been achieved (given the impact of factors <br>exoteric to School Committee control, such as white flight). Morganv. Nucci, 831 F.2d 313 (1st Cir. 1987) (Nucci). In deference to the <br>longstanding national tradition of local school autonomy, control <br>over the student assignment process was returned to the Boston <br>School Committee, with the express reservation that "'unitariness' <br>... in all aspects of the Boston schools has not yet been <br>achieved."  Id. at 318. Finally, in 1994 the district court issued <br>a "Final Judgment" in the Morgan litigation, and "permanently <br>enjoined" the Committee "from creating, promoting or maintaining <br>racial segregation in any school or other facility in the Boston <br>Public school system." Morgan v. Burke, Civil Action 72-911G, (D. <br>Mass. July 19, 1994), at 5 (Morgan IV). <br>     The School Committee voluntarily continued the 35% <br>African-American/Hispanic set-aside at the exam schools even after <br>this policy ceased in 1987 (with Nucci) to be a court mandate. In <br>1996, however, the set-aside effectively ended with McLaughlin v. <br>Boston School Committee, when the district court issued a <br>preliminary injunction ordering the admission to Boston Latin of a <br>student who challenged the set-aside's constitutionality. 938 F. <br>Supp. 1001 (D. Mass. 1996). In making that ruling, the court <br>acknowledged that <br>     the set aside had its origins in a court- <br>     ordered desegregation plan; that it had <br>     already played a crucial and successful role <br>     in desegregating the once virtually all-white <br>     examination schools; that the First Circuit <br>     had in no way called its validity into <br>     question in returning to the [Boston School <br>     Committee]control over student assignments; <br>     and that the appeals court had, if anything, <br>     strongly hinted that in-place corrective <br>     measures ought to be continued. Indeed, it may <br>     not be too much of a stretch to say that, <br>     without the set aside, there would not have <br>     been a finding of unitariness with respect to <br>     student assignments at all. <br> <br>Id. at 1016. The court then warned that "abandonment of the 35% set <br>aside at the present time without adopting other remedial measures <br>would, within the next six years or sooner, convert BLS into an <br>overwhelmingly white and Asian-American school with a black and <br>Hispanic enrollment of about 15%." Id. at 1008.  <br>     Nonetheless, the district court found a likelihood of <br>success for the disappointed white applicant Julia McLaughlin on <br>the narrow tailoring aspect of her challenge to the admissions <br>program. The district court cited the fact that "the set aside <br>still does not have a built-in termination provision." Id. at 1016. <br>It also noted that the Boston School Committee did "not appear to <br>have explored the feasibility of less racially preferential plans <br>for keeping BLS [the Boston Latin School] accessible to 'qualified' <br>students of all races and ethnicities, and not just to those <br>students who, for a myriad of reasons, tend to excel on <br>standardized examinations at the tender age of 12," even though <br>"such plans may well be available for defendants' consideration."  <br>Id. The court offered as one possible alternative to the rigid 35% <br>set-aside a periodically updated target for minority enrollment, <br>with "percentages [tailored] to the relevant qualified applicant <br>populations."  In light of the preliminary injunction, the <br>Committee replaced the set aside, and the district court's <br>suggestion of a floating target was influential in molding the set- <br>aside's immediate replacement, the current admissions program. <br>                              II. <br>The Legal Framework for an Analysis of the Evidence <br>     In rejecting the district court's conclusion that the <br>School Committee's current admissions program for Boston Latin <br>"appropriately addressed the vestiges of discrimination that linger <br>in the Boston Public School system," Wessmann v. Boston School <br>Committee, 996 F. Supp. 120, 131 (D. Mass. 1998), the majority <br>asserts that the School Committee failed to present satisfactory <br>evidence of a causal connection between the achievement gap <br>documented by the Committee and the prior de jure segregation of <br>the Boston schools. I disagree with this conclusion. In my view, <br>the majority judges the Committee's proof of causation <br>unsatisfactory because the majority misperceives the Committee's <br>evidentiary burden in defending its affirmative action program. <br>That point requires some elaboration. <br>     The law is clear that a public entity adopting an <br>affirmative action program to remedy the lingering effects of past <br>discrimination must have a "strong basis in evidence" for <br>concluding that the lingering effects it identifies are causally <br>linked to past discrimination. See City of Richmond v. J.A. Croson <br>Co., 488 U.S. 469, 500 (1989) (quoting Wygant v. Jackson Bd. of <br>Educ., 476 U.S. 267, 277 (1986) (plurality opinion)).  The more <br>elusive question is what factual predicate constitutes a "strong <br>basis in evidence" justifying action by the public entity. From my <br>reading of the relevant caselaw, I conclude that this "strong <br>basis" requirement is met preliminarily if the public entity whose <br>affirmative action program is challenged in court demonstrates that <br>the entity adopted the program on the basis of evidence sufficient <br>to establish a prima facie case of a causal link between past <br>discrimination and the current outcomes addressed by the remedial <br>program. If this prima facie case is not effectively rebutted by a <br>reverse discrimination plaintiff, the public entity has met its <br>burden of establishing a compelling remedial interest. I now turn <br>to an analysis of the cases. <br>     There are no educational context reverse-discrimination <br>opinions from the Supreme Court which give us authoritative <br>guidance on what constitutes a strong basis in the evidence <br>sufficient to warrant remedial action. Contrary to the view of the <br>majority, I think it is appropriate to look to analogous cases from <br>the employment context. In that context, the Supreme Court has <br>required that  <br>     a public employer . . . must ensure that, <br>     before it embarks on an affirmative-action <br>     program, it has convincing evidence that <br>     remedial action is warranted. That is, it must <br>     have sufficient evidence to justify the <br>     conclusion that there has been prior <br>     discrimination. <br>   <br>     Evidentiary support . . . becomes crucial when <br>     the remedial program is challenged in <br>     court. . . . In such a case, the trial court <br>     must make a factual determination that the <br>     employer had a strong basis in evidence for <br>     its conclusion that remedial action was <br>     necessary. . . .  [U]nless such a <br>     determination is made, an appellate <br>     court . . . cannot determine whether the race- <br>     based action is justified as a remedy for <br>     prior discrimination. <br> <br>Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277-78 (1986) <br>(Powell, J., plurality opinion) (emphasis added). In his earlier <br>opinion in Bakke, Justice Powell (joined by no other Justices on <br>this point) had stated that a "judicial, legislative or <br>administrative" finding of prior discrimination was an absolute <br>precondition to establishing a remedial program. Regents of the <br>Univ. of California v. Bakke, 438 U.S. 265, 307-09 (1978).  <br>Concerned that this requirement of a prior finding might be read <br>into Justice Powell's opinion in Wygant, Justice O'Connor wrote in <br>her concurring opinion in Wygant that "a contemporaneous or <br>antecedent finding of past discrimination by a court or other <br>competent body is not a constitutional prerequisite to a public <br>employer's voluntary agreement to an affirmative action plan." <br>Wygant, 476 U.S. at 289 (O'Connor, J., concurring). Although it may <br>seem excessively semantic to distinguish between the prerequisite <br>of a court or other competent body's contemporaneous or antecedent <br>finding of past discrimination to justify a voluntary affirmative <br>action program, and the lesser prerequisite of a public entity's <br>strong basis in evidence for concluding that such remedial action <br>is necessary, there is actually much at stake in that distinction. <br>As Justice O'Connor noted in her concurrence in Wygant: <br>     ...[P]ublic employers are trapped between the <br>     competing hazards of liability to minorities <br>     if affirmative action is not taken to remedy <br>     apparent employment discrimination and <br>     liability to nonminorities if affirmative <br>     action is taken. Where these employers, who <br>     are presumably fully aware both of their duty <br>     under federal law to respect the rights of all <br>     their employees and of their potential <br>     liability for failing to do so, act on the <br>     basis of information which gives them a <br>     sufficient basis for concluding that remedial <br>     action is necessary, a . . . requirement [that <br>     they have a court's actual finding of their <br>     own past discrimination before they act] <br>     should not be necessary. <br> <br>Wygant, 476 U.S. at 291 (O'Connor, J., concurring). This concern <br>for the vulnerable position of a public entity with a remedial duty <br>led Justice O'Connor to conclude that such an entity should not <br>have to wait for its own liability to minorities to be proved <br>conclusively in litigation before it could undertake remedial <br>action.  <br>     These concerns were again reflected in Justice O'Connor's <br>concurrence in Johnson v. Transportation Agency, 480 U.S. 616 <br>(1987). In Johnson, the Court upheld a voluntary affirmative action <br>program instituted by a local transportation agency. The program <br>allowed, inter alia, the agency to consider gender as a factor in <br>the applicant's qualifications for employment.  In her concurrence, <br>Justice O'Connor noted that "[w]hile employers must have a firm <br>basis for concluding that remedial action is necessary . . .  <br>Wygant . . .  [does not] place[] a burden on employers to prove <br>that they actually discriminated against women or minorities." Id.at 652 (O'Connor, J., concurring). She explained that an employer <br>would have a firm basis in the evidence, sufficient to justify <br>remedial action, "if it can point to a statistical disparity <br>sufficient to support a prima facie claim under Title VII by <br>employee beneficiaries of the affirmative action plan of a pattern <br>or practice claim of discrimination." Id. at 649.  <br>     Justice O'Connor incorporated these standards from her <br>Wygant and Johnson concurrences into an opinion for a majority of <br>the Court only a few years later in City of Richmond v. J.A. Croson <br>Co., 488 U.S. 469 (1989). In Croson, the Court invalidated a <br>minority subcontracting preference voluntarily instituted by the <br>city of Richmond because the city had not shown "any identified <br>discrimination in the Richmond construction industry." Id. at 505. <br>Justice O'Connor stated that the city had failed to justify its <br>remedial goals with a "'strong basis in evidence.'" Id. at 500 <br>(citation omitted). The city had produced "nothing approaching a <br>prima facie case of a constitutional or statutory violation by <br>anyone in the Richmond construction industry" sufficient to justify <br>the city's use of subcontracting preferences to remedy its own role <br>in perpetuating that discrimination. Id. ( III-B, opinion of the <br>court) (emphasis added). If the city had presented evidence <br>supporting a prima facie claim under Title VII by the minority <br>subcontractors, remedial action would have been warranted. In the <br>absence of this evidence, the preference was an illegitimate racial <br>classification. <br>     In Stuart v. Roache, 951 F.2d 446 (1st Cir. 1991), cert. <br>denied, 504 U.S. 913 (1992), we relied on Croson in discussing the <br>burden of proof required of a public entity to justify a voluntary <br>affirmative action plan giving minority police officers a <br>preference in promotion to sergeant. We stated that "[a] majority <br>of the Supreme Court in Croson used the words 'strong basis' and <br>'prima facie case' in [the context of voluntary race-conscious <br>remedial action by a public entity.] Hence, that is the evidentiary <br>standard that we use." 951 F.2d at 450 (citing Croson, 488 U.S. at <br>500, and Wygant, 476 U.S. at 292). We noted in Stuart that the <br>presence of statistical disparities creating a prima facie case "at <br>least casts doubt on the fairness of the promotion process and <br>requires further explanation" by the reverse-discrimination <br>plaintiff. 951 F.2d at 451. To elaborate on this last statement, <br>we cited partially to this section of Justice O'Connor's <br>concurrence in Wygant: <br>     [A] public employer must have a firm basis for <br>     determining that affirmative action is <br>     warranted. . . . For example, demonstrable <br>     evidence of a disparity [between percentages <br>     of minorities on a staff and in a] relevant <br>     labor pool sufficient to support a prima facie <br>     Title VII pattern or practice claim by <br>     minority teachers would lend a compelling <br>     basis for a competent authority such as the <br>     School Board to conclude that . . . a <br>     voluntary affirmative action program is <br>     appropriate . . . . <br> <br>          To be sure, such a conclusion is not <br>     unassailable.  If a voluntary affirmative <br>     action plan is subsequently challenged in <br>     court by nonminority employees, those <br>     employees must be given the opportunity to <br>     prove that the plan does not meet the <br>     constitutional standard this Court has <br>     articulated. However, as the plurality <br>     suggests, the institution of such a challenge <br>     does not automatically impose upon the public <br>     employer the burden of convincing the court of <br>     its liability for prior unlawful <br>     discrimination;  nor does it mean that the <br>     court must make an actual finding of prior <br>     discrimination based on the employer's proof <br>     before the employer's affirmative action plan <br>     will be upheld . . . .  In "reverse <br>     discrimination" suits, as in any other suit, <br>     it is the plaintiffs who must bear the burden <br>     of demonstrating that their rights have been <br>     violated....[W]hen the Board introduces its <br>     statistical proof as evidence of its remedial <br>     purpose, thereby supplying the court with the <br>     means for determining that the Board had a <br>     firm basis for concluding that remedial action <br>     was appropriate, it is incumbent upon the <br>     nonminority teachers to prove their case;  <br>     they continue to bear the ultimate burden of <br>     persuading the court that the Board's evidence <br>     did not support an inference of prior <br>     discrimination and thus a remedial purpose[.] <br> <br>Wygant, 476 U.S. at 292-93 (O'Connor, J., concurring). <br>     Justice O'Connor's concurrence in Wygant, relied upon by <br>us in Stuart, provides a clear statement of the strong basis in <br>evidence required of a public entity defending an affirmative <br>action employment program in court: if minority beneficiaries of a <br>voluntary program could, in the program's absence, have met the <br>initial burden of production in a Title VII pattern-or-practice <br>suit (a "prima facie case") on the basis of the evidence relied <br>upon by the public entity, then the entity is justified in <br>preemptively enacting a voluntary remedial affirmative action <br>program. Put another way, the "strong basis in evidence" required <br>of a government entity defending an affirmative action employment <br>program in court is comparable to the evidentiary burden imposed on <br>a minority plaintiff who makes a claim of a pattern or practice of <br>employment discrimination under Title VII. Both must meet the <br>standard for a prima facie case. In the reverse discrimination <br>context, however, the public entity defending a challenge to its <br>affirmative action employment program in court does so by <br>presenting the evidence of a prima facie case of discrimination <br>that a putative Title VII minority plaintiff might have presented <br>in a potential lawsuit. <br>     I must pause in this discussion of the relevant <br>employment discrimination case law to make two points which are <br>important to an understanding of the evidentiary burden of the <br>School Committee. The School Committee asserts that evidence of <br>differential success rates for African-American and Hispanic <br>students applying to the examination schools from the advanced work <br>classes in the Boston Public Schools, as compared to their white <br>and Asian classmates, and evidence that African-American and <br>Hispanic students apply to the examination schools at half the rate <br>of white and Asian students, without more, constitute a "strong <br>basis in evidence" sufficient to justify a remedial affirmative <br>action program. In its amicus brief, the NAACP asserts that <br>statistical evidence of the discriminatory effects of overreliance <br>at the exam schools on composite score as a basis for admission, <br>without more, provides a strong basis in evidence sufficient to <br>justify a remedial affirmative action program.  Both of these <br>disparate impact contentions are wrong because they do not account <br>for the centrality of proof of discriminatory animus in justifying <br>a race-conscious remedial program. That centrality accounts for <br>Justice O'Connor's reference to the strong basis in evidence <br>provided for race-conscious remedial action by a prima facie Title <br>VII pattern or practice claim. Unlike Title VII disparate impact <br>claims, Title VII pattern or practice claims require evidence of <br>discriminatory animus. In addition to providing evidence of <br>disparate impact as part of its strong basis in evidence for <br>remedial relief, the reverse discrimination defendant must link <br>that disparate impact to discriminatory animus, whether recent, or, <br>as asserted in this case by the School Committee, rooted in a more <br>distant history of discrimination. <br>     In the Supreme Court employment cases I have discussed, <br>the reverse discrimination defendant sought to establish that its <br>affirmative action program was necessary to remedy harm caused by <br>recent discrimination. The disadvantaged plaintiff challenged the <br>existence of the discrimination itself, not whether that <br>discrimination had actually harmed minorities. In response to that <br>challenge to the existence of the discrimination itself, Justice <br>O'Connor made the point in Wygant and Johnson that the public <br>employer did not have the burden of convincing the court of its <br>liability for prior unlawful discrimination, nor did the court have <br>to make a finding of prior discrimination based on the employer's <br>proof to uphold the affirmative action program. Instead, the public <br>employer only had to demonstrate that it had a strong basis in <br>evidence for concluding that there was prior discrimination. Prima <br>facie evidence of a Title VII pattern or practice claim that could <br>be brought by minority plaintiffs would be such evidence. <br>     In the instant case, where there is a long history of <br>court findings of discriminatory acts by the School Committee, <br>there is no dispute about the public entity's responsibility for <br>prior discrimination.  Instead, given the time lapse between those <br>court findings of discrimination and the claim that this <br>discrimination still disadvantages minorities, the issue in dispute <br>here is whether the vestiges of that prior discrimination now <br>affect minorities.  This showing necessarily requires evidence of <br>the existence of vestiges of the prior discrimination and of a <br>present harm to minorities.  It also requires evidence of causal <br>connections between the past discrimination and the claimed <br>vestiges, and between the vestiges and the present harm.  Through <br>these connections, the School Committee must show that the need for <br>remedial action was a consequence of the effects of past <br>discrimination.  Nevertheless, Justice O'Connor's strong basis in <br>evidence/prima facie analysis still defines the evidentiary burden <br>of the School Committee in presenting its proof of the causal <br>relationship between prior discrimination and the present effects <br>on minorities. <br>     The district court in the McLaughlin case recognized the <br>applicability of Justice O'Connor's evidentiary framework: <br>     [W]hile the party seeking to justify an <br>     affirmative action measure here the defendant <br>     BSC [Boston School Committee] defending use of <br>     the 35% set aside bears the initial burden of <br>     producing "a strong basis in evidence" in <br>     support of the measure, the "ultimate burden" <br>     of proof rests with the party challenging it <br>     to prove that it is unconstitutional. [citing <br>     Wygant] . . . [T]he burden on the BSC is <br>     merely one of production: it must demonstrate <br>     that there is "a strong basis in evidence for <br>     [its] conclusion that remedial action was <br>     necessary." [citing Concrete Works of Colo. v. <br>     Denver, 36 F.3d 1513, 1521-22 (10th Cir. <br>     1994)].  If it does so, the ultimate burden of <br>     proving that the evidence before the BSC did <br>     not reasonably support an inference of prior <br>     discrimination . . . rests with the plaintiff. <br> <br>McLaughlin, 938 F. Supp. at 1010. In the instant case, the Boston <br>School Committee had the burden of demonstrating to the court that <br>the evidence that impelled it to adopt the admissions program for <br>Boston Latin met the prima facie standard set forth by Justice <br>O'Connor in Wygant, Johnson and Croson and applied by us in Stuart: <br>that is, the Committee had to show that the evidence before it <br>would constitute a prima facie case of a constitutional or <br>statutory violation if brought by a putative minority plaintiff. If <br>this prima facie case was not effectively rebutted by Wessmann, who <br>always retains the burden of persuasion, the School Committee <br>prevails. <br>     The majority finds the School Committee's reliance on <br>cases addressing affirmative action plans designed to remedy <br>vestiges of past employment discrimination inapt. <br>     In this case, the "barrier to entry" <br>     comparable to those in the employment <br>     discrimination cases is BLS's requirement of <br>     an entrance examination and the resultant <br>     composite score and no one (least of all, the <br>     School Committee) claims that the examination <br>     or any component thereof is discriminatory in <br>     operation or effect, or that it would be <br>     discriminatory if it were used as the sole <br>     criterion for admission. Such a claim was <br>     central to our conclusion in Stuart, 951 F.2d <br>     at 451, and it is totally absent here. What is <br>     more, such a claim would make precious little <br>     sense in the context of the School Committee's <br>     argument, for standardized achievement tests <br>     (a component of the entrance examination) are <br>     the primary measure of the asserted <br>     achievement gap. <br> <br>I disagree with this analysis. Precisely as in the employment <br>cases, there is an identifiable barrier to entry that could be <br>challenged by minority applicants in the event the race-conscious <br>aspects of the Boston Latin admissions program were elided. Amicus <br>curiae NAACP makes this claim on appeal; it tried doggedly to <br>intervene below; and its position explains why the School Committee <br>could not, in the context of litigation both current and <br>anticipated, freely admit that composite score ranking may have had <br>a discriminatory impact if used alone. Despite this constraint, <br>the School Committee did allude to the notion of discriminatory <br>impact, as already noted, and there was evidence presented at trial <br>that, for African-Americans and Hispanics, composite score was not <br>reliably correlated with future performance at BLS. The Committee <br>also took pains to indicate that its stipulation at trial that <br>Wessmann would have been admitted had a straight-rank-order system <br>been used was not a concession that such an admissions scheme was <br>acceptable. <br>     Although the admissions program challenged here was <br>"voluntary," in the sense of not being impelled by the 1994 order <br>or any other court proceeding or consent decree, the mere act of <br>making a selection among students seeking admission to Boston Latin <br>exposed the Committee to legal action by minority students. As <br>Justice O'Connor characterized the analogous employment situation, <br>"public employers are trapped between the competing hazards of <br>liability to minorities if affirmative action is not taken to <br>remedy apparent employment discrimination and liability to <br>nonminorities if affirmative action is taken." Wygant, 476 U.S. at <br>291 (O'Connor, J., concurring). The Wygant case dealt with racial <br>preferences in employment, an arena where the shadow of Title VII <br>suits by disappointed minority job seekers inevitably looms over a <br>public employer using selection criteria with the potential to <br>produce an unjustifiable "disparate impact" on minorities. The same <br>considerations apply in the context of a selective public secondary <br>school: the mere act of selection exposes the school system to <br>challenge from minorities based on the disparate impact of the <br>selection criteria used. Here, the relevant provision of federal <br>law is Title VI of the Civil Rights Act of 1964, 42 U.S.C.  2000d <br>(West 1998), stating that "[n]o person in the United States shall, <br>on the ground of race, color, or national origin, be excluded from <br>participation in, be denied the benefits of, or be subjected to <br>discrimination under any program or activity receiving Federal <br>financial assistance." <br>     There was evidence produced at trial that any exclusive <br>focus on composite score in admissions had a disparate impact on <br>African-Americans and Hispanics. Although the ability of minority <br>plaintiffs to make colorable claims of Title VI violations would <br>not be sufficient to justify a race-conscious affirmative action <br>program (such claims would only be sufficient to force the <br>Committee to find some alternative to composite score rank order <br>admissions), the presence of the disparate impact underlying such <br>claims, when causally related to the history of de jure segregation <br>in the system, imposed on the School Committee a duty to ensure <br>that it did not violate the Constitution by using selection <br>criteria that perpetuated the effects of past governmental <br>discrimination. As already noted, the district court in McLaughlinwas skeptical of the legality of simply reverting to the use of <br>composite score ranking, stating just two years ago that <br>"abandonment of the . . . set aside at the present time without <br>adopting other remedial measures would, within the next six years <br>or sooner, convert BLS into an overwhelmingly white and Asian- <br>American school . . . ." 938 F. Supp. at 1008 (emphasis added).  <br>The Committee chose a remedial measure for admission to the Boston <br>Latin School in the wake of a long history of desegregation orders <br>and under the threat of Title VI suits by disappointed minority <br>applicants if no affirmative action were taken. <br>     Just as the courts have always encouraged consensual <br>resolutions to desegregation cases, Congress' intent to encourage <br>voluntary compliance with the requirements of Title VI (and VII, <br>for that matter) has always been a backdrop to the scheme of <br>evidentiary burdens the federal courts have placed on litigants <br>pursuant to that legislation. See Bakke v. Regents of the Univ. of <br>California, 438 U.S. 265, 336 (1978) (Brennan, White, Marshall, and <br>Blackmun, JJ., concurring in part) (Title VI); Johnson v. <br>Transportation Agency, 480 U.S. 616, 630 n.8 (1987) (Title VII). <br>Similarly, in cases where there may be a duty to counteract the <br>effects of past government discrimination, the Supreme Court has <br>set evidentiary standards that facilitate a voluntary remedy. A <br>government entity need not admit conclusive guilt for past <br>discrimination's current effects before going forward with a <br>remedial plan. Instead, it must satisfy the court that the evidence <br>before it established a prima facie case of a causal link between <br>past discrimination and the current outcomes addressed by the <br>remedial program. If this prima facie case is not effectively <br>rebutted by a reverse discrimination plaintiff, who always retains <br>the burden of proving the illegality of the affirmative action <br>program, the government has met its burden of establishing a <br>compelling remedial interest under strict scrutiny analysis. With <br>this legal framework in mind, I turn to an analysis of the evidence <br>on the vestiges of discrimination. <br>                              III. <br>The Evidence on the Vestiges of Discrimination <br>     The district court found that "[t]he overwhelming <br>evidence presented at trial confirmed the Boston School Committee's <br>basis for concluding that remedial action was necessary . . . ." <br>996 F. Supp. at 131.  The majority says we should exercise plenary <br>review of that decision, "taking the statistical and anecdotal <br>evidence in the manner suggested by the School Committee."  I agree <br>with the majority's approach.  I disagree with its conclusion. <br>1. The Achievement Gap <br>     The evidence at trial revealed large gaps between African- <br>Americans and Hispanics, on the one hand, and whites and Asians, on <br>the other, in admissions to the exam schools, and in achievement <br>and allocation of resources throughout the system. The most <br>significant of these is the persistent, static gap in achievement <br>between African-American and Hispanic students and white and Asian <br>students. The gap is measured by achievement test scores of fifth <br>and sixth graders on the Metropolitan Achievement Test and the <br>Stanford 9.  Expert witness analysis of the test results over a <br>several year period showed a persistent and relatively unchanging <br>gap in achievement in all subject matters which correlated with <br>race: African-American and Hispanic students fared much worse on <br>the tests than whites. The tests also revealed that, in general, <br>Asians fared worse than whites on language skills achievement.   <br>     The evidence also demonstrated that African-Americans and <br>Hispanics from the public schools apply to the examination schools <br>at half the application rate of other students in the public <br>schools. Even within the special advanced work classes which are <br>designed to prepare Boston public elementary school students for <br>the examination schools, African-Americans and Hispanics fared <br>worse in the examination schools' admissions process than whites. <br>Finally, there was evidence that African-American and Hispanic <br>applicants to Boston Latin from private elementary schools do much <br>better in the admissions process than their Boston public school <br>counterparts. The existence of these "gaps" was undisputed at the <br>trial.   <br>2. The Relationship of the Achievement Gap to Prior Discrimination <br>     The Committee presented evidence of a connection between low <br>teacher expectations for minority students and low minority <br>performance on achievement tests.  The Committee presented further <br>evidence that these low teacher expectations for minority students <br>are prevalent in the Boston school system, and that this prevalence <br>is a vestige of the long years of segregation in the Boston school <br>system.  Given these connections between student achievement, <br>teacher expectations for students, and the impact of years of <br>segregation on these teacher expectations, the achievement gap <br>itself is a current and lingering effect of discrimination.  I will <br>now summarize the evidence on these connections. <br>(a) The connection generally between teacher expectations and <br>student performance <br>     Both Dr. William Trent and Deputy Superintendent Janice <br>Jackson testified that teacher expectations affected student <br>performance. Dr. Trent gave extensive testimony concerning the <br>research he performed for the Kansas City School District in <br>connection with the school's efforts to determine whether it had <br>remedied the vestiges of prior segregation in compliance with a <br>court order.  In this study, Dr. Trent relied upon "climate <br>surveys" comprehensive questionnaires distributed to teachers, <br>students and parents to evaluate and score teacher efficacy.  He <br>explained that teacher efficacy measures "the sense that teachers <br>perceived themselves or their colleagues as able to make a <br>difference in their teaching activities, their perceptions that <br>their schools operate with a sense of fairness, that they have a <br>high regard for their students and student body, [and] that they <br>perceive their school as open and accessible. . . ."   A higher <br>efficacy score indicated that the teachers considered themselves <br>able to make a difference in their teaching activities and that <br>they held their students in high regard.  The Kansas City study <br>showed that there was a correlation between high teacher efficacy <br>scores and higher student test performance, while low teacher <br>efficacy scores were associated with low student test performance. <br>      Deputy Superintendent Jackson also testified that teacher <br>expectations affect student performance.  Early in Jackson's career <br>she was specifically trained in TEASA (Teacher Expectations and <br>Student's Achievement) techniques.  TEASA's techniques were derived <br>from studies demonstrating that interactions of teachers with <br>students can convey whether the teachers believe that the students <br>are capable of performing at a high level.  Specifically, the <br>techniques attempt to focus the teachers on their unconscious <br>biases about low and high achievers, including how their racial <br>attitudes influence their expectations of the students.  For many <br>years, Jackson instructed teachers on these techniques and <br>conducted countless training sessions to demonstrate how teachers' <br>interactions with students, even at an unconscious level, can have <br>a significant impact on student performance. <br>     Superintendent Thomas Payzant echoed Trent's and Jackson's <br>statements: "My experience is that if you set high expectations for <br>a student, they will try harder to reach the higher bar than if you <br>set low expectations where they will tend to be content that they <br>have met what they are expected to do and should be satisfied with <br>their accomplishment." <br>(b) Low expectations for minority students in the Boston School <br>System <br>     Deputy Superintendent Jackson described her numerous <br>opportunities to observe the interactions among students, teachers <br>and administrators in the Boston public schools. In fact, Jackson <br>testified that she observed between thirty and forty Boston public <br>schools in her first year as Deputy Superintendent and at least <br>another forty schools in the system her second year.  During these <br>classroom visits, she observed that teachers had different <br>expectations for the African-American and Hispanic children versus <br>the Asian and white children.  She saw incidents of unjustified <br>disciplinary action directed at minority students, and noted a <br>frequent failure of teachers to call upon African-American and <br>Hispanic students in class. She also saw recurring instances of <br>teachers withholding praise for minorities and treating them with <br>condescending laxity when calling upon them in class.  <br>     Noting the substantial disparity in the application rates of <br>African-American and Hispanic students compared with white and <br>Asian students to Boston Latin School, Dr. Trent connected these <br>low expectations for minority students described by Jackson to the <br>minority students' low test performance and low admissions rate at <br>the examination schools. Dr. Trent explained that "[t]o the extent <br>teachers play a central role in encouraging and preparing students <br>to apply for one of the more valued resources in the Boston Public <br>Schools, [the difference in application rates] reflects a very <br>different rate of success with encouraging or facilitating black <br>and Hispanic students applying, in contrast to the rate at which <br>white and Asian students do." He elaborated on this point:  <br>          Based, again, on the commentary reported and <br>     recorded by Deputy Jackson in her deposition, and my <br>     interviews, and on the pattern of applicant disparity, as <br>     well as looking at the data in terms of the generation of <br>     applicants, and there's chartered information that shows <br>     the same schools, for example, that generate substantial <br>     numbers of white and Asian applicants are not as <br>     successful with generating comparable numbers or rates of <br>     applicants for black and Hispanic students. <br>  <br>          These suggest patterns of differential treatment or <br>     encouragement, or success, at least, with those black <br>     students, some of which is likely attributable to <br>     differential expectations, particularly within the <br>     commentary of the headmasters and the principals of the <br>     schools I had an opportunity to visit. <br> <br>(c) Low expectations for minority students as a vestige of prior <br>discrimination <br>      Dr. Trent provided the primary evidence on the causal link <br>between prior discrimination and low teacher expectations for <br>minority students and the effect of these low expectations on the <br>achievement gap. Dr. Trent tied these low expectations to the <br>lingering effects of a segregated school system.  He explained: "It <br>appears that in the seniority ranks, as many as 28.4 percent of the <br>teachers currently employed in the district have been with the <br>district since prior to 1973, and about 47 percent have been with <br>the district from 1980 and prior."  These numbers indicated to Dr. <br>Trent that many of the teachers' attitudes towards their students <br>and expectations of them were shaped in a segregated school system. <br>Dr. Trent explained the difficulty of changing such teacher <br>attitudes following a desegregation order:  <br>          . . . [A]n organizational theory in research <br>     suggests that organizational change and organizational <br>     stability, particularly the climate of attitudes and <br>     dispositions within organizations, is a critical feature, <br>     and that generally recruitment hinges on socializing new <br>     members into the existing culture of the organization. So <br>     to the extent that there is this kind of faculty <br>     seniority and tenure in the district, we could be seeing <br>     the persistence of particular attitudes that predate or <br>     at least were shaped and developed during the period of <br>     intense contestations regarding the desegregation of the <br>     schools [in Boston]. And to the extent that there is <br>     little change, effort, professional development, and <br>     other sorts of efforts that would address those <br>     prevailing attitudes, you could have a persistence of <br>     those attitudes and the socialization of new individuals <br>     into those existing cultures. <br>   <br>          School desegregation research has shown the <br>     importance of changing the composition of the makeup of <br>     the schools, the racial composition of faculty, and the <br>     importance of changing leadership, as well as providing <br>     professional development experiences in order to <br>     facilitate greater success with the desegregation effort. <br> <br>Based on his interviews with school personnel, Dr. Trent testified <br>that there was no evidence that the school system had been <br>successful in counteracting the diminished expectations for <br>minority students. <br>     As noted by the majority, Dr. Trent did not conduct a specific <br>study of the Boston school system, as he had done for the Kansas <br>City School District, to evaluate whether teachers had different <br>expectations for minority students and whether those low <br>expectations were attitudinal remnants of the segregation era. In <br>lieu of such a study, Trent relied on the seniority statistics <br>discussed above as well as statistics relating to the different <br>student application rates to the exam schools, indicating a <br>substantial disparity between the application rates of African- <br>Americans and Hispanics compared to whites and Asians. He also <br>relied on statistics that show that African-American and Hispanic <br>students attending the Boston public schools receive invitations to <br>attend Boston Latin at a much lower rate than do African-Americans <br>and Hispanics attending private schools, whereas the invitation <br>rates for white and Asian private school and white and Asian public <br>school students were comparable. Finally, he relied on interviews <br>with headmasters, principals and other personnel, as well as an <br>interview with Deputy Superintendent Janice Jackson, who, as noted, <br>had special training in observing teacher interactions with <br>students, and had made a personal survey of over seventy schools in <br>the Boston school system over the course of two years.  Based on <br>this information, he offered his expert opinion that low teacher <br>expectations for minorities, shaped in the segregation era, are a <br>cause of the current achievement gap, and thus the achievement gap <br>itself is a vestige of discrimination. <br>     Superintendent Payzant also testified to vestiges of prior  <br>discrimination in the school system. He first explained that, prior <br>to 1973, there were  <br>     specific practices in the school district that resulted <br>     in students being assigned to schools that often led to <br>     particular races being represented in some schools and <br>     not others, practices that resulted in resources being <br>     unequally distributed so that there were disparities <br>     among the schools, disparities among the programs that <br>     were offered and the access and opportunity that students <br>     had to them . . . . <br> <br>          . . . . <br> <br>          And I cite that because I think the institutional <br>     history of the school district prior to 1973 was shaped <br>     by those practices.  And as I testified a moment ago, <br>     there is a significant percentage of teachers and other <br>     educators in the Boston Public Schools who really were <br>     socialized and shaped by the expectation that the <br>     institution had in the pre-1973 period.  <br> <br>He further explained the significance of this "socialization" in <br>the pre-1973 period: "[W]hat was going on [pre-1973] was part of <br>what people saw as their normal working conditions and they learned <br>to function in those settings and, whether consciously or <br>unconsciously, accepted the practices that were occurring in many <br>instances."  He noted that  <br>     there was a disparity in terms of allocation of <br>     resources, access to programs, variation in quality from <br>     school to school, . . . [and] the result was that some  <br>     students were getting a higher quality education than <br>     others and often that was defined by race, and that was <br>     part of the background with respect to expectations that <br>     were set for what students could or could not do. <br> <br>     Robert Gittens, Vice-Chair of the Boston School Committee, <br>also testified that the effects of segregation and prior <br>discrimination permeated the school system despite its efforts to <br>remedy the problem. He explained that he was often in contact with <br>African-American parents who complained of being alienated from the <br>school system. They also complained that their children were not <br>being motivated or challenged academically.  He noted, however, <br>that he did not hear these complaints from white parents.  He <br>further stated:  "We have schools today that are overwhelmingly <br>black and Hispanic[.]  I believe that there is a pervasive sense <br>that there are kids in the system who cannot, will not . . . <br>succeed."  He elaborated:  <br>     I think that one of the things that has happened is we <br>     have a teaching force that has been in the system for a <br>     very long period of time.  And I think that there are <br>     large numbers of teachers who, and I've heard this from <br>     headmasters and principals and others, that there are <br>     teachers who say, "I've been teaching this way for 20 or <br>     25 years.  Why should I change the way I teach?" <br> <br>3. A prima facie case of causation <br>     The majority's criticisms of the Committee's evidentiary case <br>are twofold: 1) the Committee did not establish the presence of <br>differential teacher exceptions for minority students and 2) the <br>Committee failed to establish any causal connection between prior <br>discrimination and the achievement gap itself; that is, it failed <br>to establish that prior discrimination affected low teacher <br>expectations for minority students and further failed to establish <br>that these low expectations were a cause of the achievement gap. I <br>respond to these criticisms in turn. <br>     The majority asserts that Dr. Trent's failure to conduct a <br>survey of the type conducted in Kansas City disabled him from <br>validly establishing that teachers had different expectations for <br>minority students.  Specifically, the majority criticizes Dr. <br>Trent's reliance on "anecdotal" evidence about teacher attitudes <br>supplied by school officials rather than the broad survey of <br>teachers in Kansas City.  Used pejoratively, the word "anecdotal" <br>describes accounts of isolated instances few in number. Used <br>descriptively, the word describes observational testimony that <br>could embrace many instances of a phenomenon.  We should be wary of <br>dismissing as "anecdotal" the extensive observational accounts of <br>experienced school administrators testifying about the prevalence <br>of different teacher expectations in their school systems, <br>particularly when, as in the case of Deputy Superintendent Jackson, <br>the administrator is trained to make such observations. <br>     Jackson had observed a large variety of classrooms before her <br>work in the Boston schools. As a result, her observations of over <br>seventy schools in the Boston school system over a two year period <br>were made within a broader frame of reference than those of the <br>individual teachers, students, and parents responding to the <br>surveys relied on by Dr. Trent in his Kansas City survey. Jackson's <br>extensive training in making such observations would allow her to <br>notice nuanced behavior that survey respondents would not have <br>discerned.  While the risk that the personal bias of the observer <br>will infect the results is greater when relying on data filtered <br>through a few observers, as opposed to data reported on paper by a <br>large number of survey respondents, Jackson was trained to make her <br>observations in a professional, objective manner.  Observations of <br>wide scope, reported by parties with training in methods of <br>objective observation, do permit generalization about "pervasive," <br>"systematic" problems. <br>     The majority opinion and the concurrence contend that there is <br>a similarity between the evidence relied upon by the School <br>Committee and the evidence found inadequate by the Supreme Court in <br>Croson. I find this analogy unconvincing.  In Croson, there was no <br>evidence of local, industry-specific discrimination beyond the <br>statements of one councilperson to the effect that he was "familiar <br>with the practices in the construction industry in this area," and <br>that in his experience "the general conduct of . . . the industry <br>. . . is one in which race discrimination and exclusion on the <br>basis of race is widespread." Id. at 480. Such a vague <br>generalization led the Court to conclude that "none of the evidence <br>produced by the city points to any identified discrimination in the <br>Richmond construction industry." Id. at 506. In this case, the <br>testimony of Trent, Jackson and others on the achievement gap, low <br>teacher expectations for minorities, and the causal connection to <br>prior discrimination in the Boston public schools was based on <br>extensive observations by skilled professionals of the conduct and <br>performance of students and teachers in the Boston schools, as well <br>as statistical evidence specific to those schools. <br>     The majority also asserts that "Dr. Trent thus freely conceded <br>that the data he used [on teacher expectations] was not of the <br>quality necessary to satisfy the methodological rigors required by <br>his discipline."  I do not find this concession in Dr. Trent's  <br>testimony. In fact, during cross-examination, in response to a <br>question concerning whether it was reasonable for him to rely on <br>Deputy Superintendent Jackson's assessments of teacher expectations <br>in the Boston school system, Dr. Trent responded: "In many <br>instances in the social sciences, qualitative researchers work with <br>information that is reported by the respondents. That is not <br>unusual."  Although a survey of teachers and other personnel in the <br>Boston school system would have provided a more substantial basis <br>for Dr. Trent's opinion on the existence of low teacher <br>expectations for minorities, the absence of such empirical data <br>does not justify the majority's rejection of his testimony.   <br>     I also disagree with the majority that Trent's testimony <br>relied on "evidence from one locality to establish the lingering <br>effects of discrimination in another" in the manner criticized in <br>Croson.  Dr. Trent's expertise in identifying patterns of vestigal <br>effects of discrimination necessarily was acquired through his <br>prior studies of other school systems, including Kansas City.  He <br>did not attempt to use national statistics or statistics from other <br>localities to infer the existence of similar local conditions, as <br>was done by the city council in Croson.  See Croson, 488 U.S. at <br>504. <br>     The Committee's evidence on the connection between prior <br>discrimination and low teacher expectations, and low teacher <br>expectations and the achievement gap, was undeniably a mix of <br>statistical and anecdotal evidence. Although the majority finds <br>this mix unacceptable, courts have often held that statistical <br>evidence documenting a disparate impact or a pattern or practice of <br>disparate treatment can combine with anecdotal evidence of acts of <br>discrimination to establish a prima facie case of discrimination.  <br>     In International Brotherhood of Teamsters v. United States, <br>431 U.S. 324, 334-38 (1977), statistical evidence on outcome <br>(namely, the low number of minority truck drivers compared to the <br>relevant qualified pool) was supported by individual testimony on <br>prior discrimination (over forty acts of explicit discrimination <br>against minority aspirants). These testimonials "brought the cold <br>numbers convincingly to life."  Id. at 339. In Coral Construction <br>Co. v. King County, 941 F.2d 910, 919 (9th Cir. 1991), cert. <br>denied, 502 U.S. 1033 (1992), the Ninth Circuit warned of the <br>dangers of relying overly on either statistics or anecdotal <br>accounts, individually, to establish a widespread pattern of <br>discrimination.  Nonetheless, the court found that "the combination <br>of convincing anecdotal and statistical evidence is potent." 941 <br>F.2d at 919.  In EEOC v. O & G Spring and Wire Forms Specialty Co., <br>38 F.3d 872, 878 (7th Cir. 1994), cert. denied, 513 U.S. 1198 <br>(1995), statistical evidence established only that the employer in <br>question had no African-American employees; the anecdotal evidence, <br>limited to a sampling of four disappointed applicants, was relevant <br>to demonstrating discriminatory conduct. The plaintiffs <br>successfully established a prima facie case of a pattern or <br>practice of disparate treatment. In Ensley Branch, NAACP v. <br>Birmingham Fire Fighters Ass'n 117, 31 F.3d 1548, 1565 (11th Cir. <br>1994), the Eleventh Circuit stated that anecdotal evidence could be <br>"used to document discrimination, especially if buttressed by <br>relevant statistical evidence." <br>     In the instant case, experienced school administrators and <br>officials, such as Superintendent Payzant and Vice-Chair Gittens, <br>offered their judgment, on the basis of extensive day to day <br>experience with the Boston school system, that there were links <br>between prior discrimination in the system, low teacher <br>expectations, and the achievement gap. Dr. Trent offered his expert <br>opinion on these links without challenge to the admissibility of <br>his testimony.  He testified that his conclusions were based on a <br>reasonable methodology in his profession.  He evaluated statistics <br>documenting student performance and teacher histories in the Boston <br>school system. He studied the observations of a well-trained <br>administrator in the Boston school system describing teacher <br>performances in the classroom, the impact of these performances on <br>students, and faulty attempts to alter teacher attitudes. He knew <br>the history of segregation in the Boston school system.  Seeing <br>statistics and patterns in Boston that he had observed in other <br>school systems where he had found a link between student <br>achievement gaps and prior discrimination, he testified to the <br>probability of such a link in the Boston school system. He had an <br>adequate basis for making that judgment. <br>     The majority also finds fault with Dr. Trent's testimony, and <br>the Committee's case generally, because of the failure to control <br>for "competing explanations for current realities." In the <br>majority's view, the Committee's evidence had to account for other <br>variables that might explain all or part of the achievement gap in <br>terms of societal discrimination. This insistence reflects a <br>misconception of the School Committee's evidentiary burden, and <br>would elevate the Committee's evidentiary burden far beyond the <br>prima facie standard contemplated in the Title VII cases.  The <br>Committee did not have to present proof that would permit the court <br>to make an independent finding of causation.  The Committee had to <br>satisfy the court that the Committee had before it a strong basis <br>in evidence for its judgment that the achievement gap is linked to <br>past discrimination in the Boston school system. As indicated by <br>the discussion of the Supreme Court and First Circuit precedents in <br>Part II, that strong basis is provided by a prima facie case of <br>causation. In voluntarily undertaking remedial measures, the School <br>Committee did not have to establish an airtight case for its own <br>liability to minority students. By setting the bar of proof for the <br>School Committee unrealistically high, the majority has ignored <br>precedents that impose only a prima facie burden on the School <br>Committee. <br>     Contrary to the majority, I believe that Boston Police <br>Superior Officers Federation v. City of Boston, 147 F.3d 13 (1st <br>Cir. 1998), where we upheld an affirmative action program, supports <br>the conclusion that the School Committee satisfied its evidentiary <br>burden to justify the remedial measure. In Boston Police, we first <br>relied upon "the BPD's history of racial discrimination [that] is <br>well-documented in the decisions of this court." Id. at 20. We <br>described the twenty years of litigation attempting to remedy the <br>department's discrimination against African-Americans. We relied <br>upon court findings made seven years prior to the litigation at <br>issue and specifically noted that "we do not think this evidence is <br>too temporally remote to justify the conclusion that the BPD's past <br>racial discrimination has manifest effects in the present status of <br>black officers." Id.  We considered the statistical evidence that <br>demonstrated a continuing disparity between African-American and <br>white police officers being promoted to lieutenant positions.  We <br>then concluded:  <br>     This tortuous history, combined with the persistent <br>     effects of discriminatory practices at the entry and <br>     sergeant levels, sufficiently links the BPD's past <br>     discrimination and the statistical disparities <br>     contemporaneous with Ruiz's promotion.  Given the BPD's <br>     halting and, at times, quite modest progress in remedying <br>     its earlier discrimination, we are reluctant to infer <br>     that the vestiges of that discrimination had <br>     substantially disappeared when the BPD promoted Ruiz. The <br>     evidence warranted the district court's conclusion that <br>     the 1996 "statistical disparity combines with judicial <br>     findings of past entry-level discrimination by the BPD to <br>     imply convincingly that historical discrimination has <br>     affected the promotion of minority sergeants to the rank <br>     of lieutenant, and that the lingering effects of that <br>     discrimination were present in 1995 when the BPD promoted <br>     Ruiz." <br> <br>Id. at 22-23 (citations omitted).  Implicit in our decision in <br>Boston Police was the common sense proposition that a long history <br>of discrimination in a social institution affects for a <br>considerable period of time the attitudes and behavior of people <br>who have worked in that system.  Although such history, standing <br>alone, cannot provide the strong basis in evidence for a public <br>entity's adoption of an affirmative action program, it can <br>contribute to the evidentiary basis underlying the judgment that <br>there is a causal relationship between a current outcome, such as <br>an achievement gap, and past discrimination.  The Committee <br>appropriately invokes that history to support, in part, its <br>admission program for Boston Latin.  <br>     I am concerned that the majority's evidentiary requirements in <br>this case will force school systems contemplating affirmative <br>action programs designed to address the effects of past <br>discrimination to establish, through the collection of quantifiable <br>social science data, that past discrimination is the sole or <br>primary cause of variable achievement. Given the Supreme Court's <br>emphasis on the prima facie justification for such an initiative, <br>I conclude that "substantial factor" causation meets the causal <br>burden of production for a prima facie case. In his dissent in <br>Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), Justice <br>Stevens noted that under existing law the notion of a prima facie <br>case under Title VII contemplates a similar standard. As he put it, <br>the asserted causal link between the acts of an employer and the <br>harm to a Title VII plaintiff  "must have substance" but "need not <br>constitute the sole or primary cause of the harm." Id. at 672-73 <br>(Stevens, J., dissenting).  This standard reflects the general tort <br>standard embodied in the Restatement; See Restatement (Second) of <br>Torts  430-433 (1965). As Justice Stevens also noted, it is <br>consistent with the views of a majority of Justices in Price <br>Waterhouse v. Hopkins, 490 U.S. 228 (1989). It is also consistent <br>with Congress' response to that decision in the 1991 Civil Rights <br>Act. <br>     The evidence presented by the School Committee established a <br>prima facie case that differential teacher expectations, grounded <br>in the long history of segregation in the Boston school system, <br>were a substantial causal factor in the undeniable achievement gap <br>found in the Boston school system. In the face of this evidence, <br>Wessmann had the burden of challenging the Committee's prima facie <br>case by disproving the alleged causal linkages between prior <br>discrimination, teacher expectations, and the achievement gap. <br>4. Plaintiff's evidence challenging the causal link <br>     Wessmann conceded the existence of the achievement gap but <br>attempted to rebut the causal explanation advanced by the Committee <br>by asserting a "neutral explanation" for the disparities (that is, <br>that they were due to socioeconomic conditions attributable, at <br>most, to societal discrimination). Wessmann's only witness on these <br>matters, Professor Stephan Thernstrom, hypothesized that three <br>variables poverty rates, levels of education, and family <br>structures might be the cause of the achievement gap in the Boston <br>system. He based his hypothesis on national statistical evidence <br>that demonstrates powerful relationships between low achievement <br>and poverty rates, levels of education and family structure. <br>Professor Thernstrom suggested that, if a controlled study had been <br>done to isolate the causes of the achievement gap, the study would <br>have revealed that any causal connection between the achievement <br>gap and teacher expectations was insignificant. He further rejected <br>the Committee's argument that low teacher expectations are <br>connected to prior discrimination on the basis that the Committee <br>did not conduct a study on this issue. <br>     During cross-examination, Professor Thernstrom acknowledged <br>that he had no data particular to Boston on any alternative causes <br>of the achievement gap, thus confirming his reliance on the <br>national statistics criticized by the Supreme Court in Croson.  He <br>also acknowledged that, in his recent book evaluating the causes of <br>a national achievement gap between students, he had written that <br>neither poverty rates, levels of education, nor family structure <br>could account for the national achievement gap between African- <br>American and white students. In fact, in a chapter titled "Low <br>Expectations, Low Performance," he stated that "ask little of <br>children in the way of academic achievement and little is what you <br>tend to get." In that chapter, he specifically cited actions of the <br>Boston School Committee in 1990, and stated that the Boston public <br>schools "were failing to do their job and most of all failing <br>African-American pupils." <br>     As the district court noted in its opinion, the one expert <br>witness to testify on Wessmann's behalf conceded that, ultimately, <br>alternative theories of causation could not fully explain the <br>achievement gap between white and African-American students. <br>Hearing this evidence, the district court rejected Thernstrom's <br>direct testimony and accepted only his cross-examination testimony, <br>along with other evidence presented by the Committee, in reaching <br>its conclusion that the Boston Latin admissions program <br>"appropriately addressed the vestiges of discrimination that linger <br>in the Boston Public School system." 996 F. Supp. at 131. <br>     By asserting that the district court erred in crediting the <br>extensive observational testimony of experienced, well-trained <br>school administrators, and by requiring quantifiable data to <br>establish a causal link between past discrimination and present <br>outcomes, the majority would reduce strict scrutiny to a standard <br>that is indeed "fatal in fact." See Adarand, 515 U.S. 200, 237 <br>(1995).  In my view, the district court properly concluded that the <br>School Committee had a strong basis in evidence for adoption of the <br>Boston Latin admissions program, thereby meeting its evidentiary <br>burden, and that the plaintiff failed to carry her burden of <br>persuading the court that this affirmative action program was <br>unconstitutional. <br>                              IV. <br>Narrow Tailoring <br>     To survive strict scrutiny, the School Committee's admissions <br>program must serve a compelling interest in remedying past <br>discrimination and must also be narrowly tailored to serve that <br>goal. "When race-based action is necessary to further a compelling <br>interest, such action is within constitutional constraints if it <br>satisfies the 'narrow tailoring' test this Court has set out in <br>previous cases." Adarand, 515 U.S. at 237. United States v. <br>Paradise, 480 U.S. 149 (1987), is the leading Supreme Court case on <br>the meaning of narrow tailoring. It emphasizes the following <br>factors: "the necessity for the relief and the efficacy of <br>alternative remedies; the flexibility and duration of the relief, <br>including the availability of waiver provisions; the relationship <br>of the numerical goals to the relevant labor market; and the impact <br>of the relief on the rights of third parties." Id. at 171.  <br>Fundamentally, narrow tailoring analysis asks whether a program is <br>"overinclusive" or "underinclusive" to serve the purposes of the <br>specific compelling interest on which the program is based.  Seegenerally id. at 190 n.1 (Stevens, J., concurring); Church of the <br>Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 <br>(1993). <br>      The following language from Croson offers some insight into <br>the rationale underlying these factors: <br>     [The narrow tailoring prong of strict scrutiny analysis] <br>     ensures that the means chosen "fit" [the] compelling goal <br>     so closely that there is little or no possibility that <br>     the motive for the [racial] classification was <br>     illegitimate racial prejudice or stereotype. <br> <br>          Classifications based on race carry a danger of <br>     stigmatic harm. Unless they are strictly reserved for <br>     remedial settings, they may in fact promote notions of <br>     racial inferiority and lead to a politics of racial <br>     hostility. <br> <br>Croson, 488 U.S. at 493. On this account, the "narrow tailoring" <br>and "compelling interest" requirements serve the same purpose: <br>ensuring that the program in question is not simply motivated by a <br>desire to favor one race. "Narrow tailoring" serves the additional <br>purpose of minimizing inadvertent harms that may result from an <br>affirmative action program, on the basis of a "cost-benefit" <br>analysis. Given these narrow tailoring considerations, I am <br>satisfied that the School Committee has produced a race-conscious <br>admissions program for Boston Latin which is narrowly tailored to <br>address a compelling remedial goal. <br>1. Flexibility and Duration of the Relief <br>     The admissions program's racial/ethnic composition standards <br>automatically vary each year with the composition of the Qualified <br>Applicant Pool. The record indicates that there has been some case- <br>by-case flexibility in the past: a well-qualified Native American <br>admittee who would not have been admitted under a mechanical <br>application of the program's guidelines (there was too low a <br>percentage of Native Americans in the qualified pool that year to <br>have a spot allocated to that racial/ethnic group) was nonetheless <br>admitted after a glance at the straight composite-score ranking <br>indicated this student had placed above the lowest-ranked admittee. <br>     The limited duration requirement has generally been met by <br>"built-in mechanisms" to shrink the scope and limit the duration of <br>remedial programs. See Boston Police, 147 F.3d at 23, 24-25 <br>(quoting Mackin v. City of Boston, 969 F.2d 1273, 1278 (1st Cir. <br>1992)). A race-conscious program's "temporary" nature ensures that <br>it "will not last longer than the discriminatory effects it is <br>designed to eliminate." Fullilove v. Klutznick, 448 U.S. 448, 513 <br>(1980) (Powell, J., concurring). The policy at issue here is <br>explicitly subject to review. The superintendent must present <br>findings and recommended modifications to the Committee every three <br>years.  The district court found that the review provision "ensures <br>that the Policy will not outlive the examination schools' <br>compelling need for it." 996 F. Supp. at 132. While it is not <br>"self-terminating" in an involuntary, mechanical sense, nothing <br>about this race preference implies permanence in the sense of the <br>Supreme Court's general warning against "remedies that are ageless <br>in their reach into the past, and timeless in their ability to <br>affect the future." Wygant, 476 U.S. at 276 (plurality); see alsoCroson, 488 U.S. at 498. <br>2. Relationship of the Numerical Goals to the Composition of the <br>Qualified Pool <br>     This element of narrow tailoring assures that the <br>beneficiaries of any program will be qualified, thereby minimizing <br>the cost of the preference to society while assuring that the <br>favored applicants are not unjustly enriched. Cases approving <br>preferences in the promotions of police officers cite the <br>"relationship of the [program's] numerical goals to the relevant <br>labor market," Paradise, 480 U.S. at 171, or the fact that the <br>preference is directed accurately towards "the smaller group of <br>individuals who possess the necessary qualifications . . . ." <br>Boston Police, 147 F.3d at 21 (quoting Croson, 488 U.S. at 501). <br>This "qualification" factor does not make the transition from the <br>employment to the educational context gracefully: education, after <br>all, is directed at shaping individuals in a prospective manner. <br>Students ranking in the lower half of the applicant pool by <br>composite score had succeeded at Boston Latin in the past <br>(Headmaster Contompassis recalled one in the sixty-fourth <br>percentile from the top who graduated near the top of his class). <br>Nonetheless, the Committee's admissions program has clearly been <br>structured to meet this qualification requirement. No one is <br>admitted, on account of the "flexible racial/ethnic guidelines," <br>from outside the qualified applicant pool (or even from anywhere <br>near the median score point).  In fact, for the 1997-1998 school <br>year, all students admitted were within the top 10.6% (by composite <br>score rank) of the applicant pool. <br>3. Impact of the Relief on the Rights of Third Parties <br>     In Paradise, the Court asked if the promotion preference given <br>in that case was an "absolute bar" to advancement. See Paradise, <br>480 U.S. at 171, 182-83 (quoting Local 28 of Sheet Metal Workers v. <br>EEOC, 478 U.S. 421, 481 (1986)). Without minimizing the <br>disappointment Sarah Wessmann feels at her exclusion from Boston <br>Latin, the answer to the analogous inquiry in this case is clearly <br>"no." Forty-five spots were open to Wessmann on the basis of <br>composite score alone, and several times as many were available <br>when Wessmann attempted to enter at the seventh grade level (even <br>accounting for the 35% set-aside which existed during that year).  <br>     The numerous employment promotion-preference cases also ask <br>whether the preference imposes a layoff-like burden, i.e., whether <br>it defeats legitimate entrenched expectations of the disfavored. <br>Layoffs raise more severe narrow tailoring concerns than a hiring <br>preference: <br>     In cases involving valid hiring goals, the burden to be <br>     borne by innocent individuals is diffused to a <br>     considerable extent among society generally.  Though <br>     hiring goals may burden some innocent individuals, they <br>     simply do not impose the same kind of injury that layoffs <br>     impose.  Denial of a future employment opportunity is not <br>     as intrusive as loss of an existing job. <br> <br>Wygant, 467 U.S. at 282-83. Rather than being removed from a <br>superior school because of a racial preference, Wessmann was denied <br>the opportunity to move from a good school to a better school. <br>There is no constitutional right to attend a school of one's <br>choice. See Johnson v. Bd. of Educ., 604 F.2d 504, 515 (7th Cir. <br>1979); United States v. Perry Cty. Bd. of Educ., 567 F.2d 277, 279 <br>(5th Cir. 1978). It is true that Wessmann, unlike the non-promoted <br>police officers in Stuart or Boston Police, will not have another <br>chance to enter Boston Latin. However, her situation resembles <br>denial of a promotion with retention of current job status: she <br>remains at the Latin Academy which, while not the equal of the <br>Latin School in terms of overall student performance, is <br>nonetheless "challenging" Wessmann, according to the affidavit of <br>her Headmaster, the trial testimony of her father, and other <br>evidence in the record. <br>4. Necessity of Relief to Achieve the Compelling Interest, and the <br>Efficacy of Alternative Remedies. <br>(a) Necessity of relief to achieve the compelling interest <br>     "To evaluate [a determination of necessity] we must examine <br>the purposes [a preference program] was intended to serve." <br>Paradise, 480 U.S. at 171. Here, that goal is to overcome <br>expeditiously the effects of past discrimination in the Boston <br>schools. Urgency of relief is a legitimate consideration in finding <br>necessity. See Paradise, 480 U.S. at 173-77.  If admissions had <br>been based on straight rank order for the 1997-1998 school year, <br>the percentage of those invited to the seventh grade who were <br>African-American would have dropped from 13% to 6%; for Hispanics <br>the drop would have been from 5% to 3%. For the ninth grade, the <br>dropoff would have been 21% to 14% for African-Americans and 10% to <br>7% for Hispanics. Given the low levels of African-American and <br>Hispanic students who would have been admitted to Boston Latin on <br>a straight-from-the-top admissions methodology (in comparison to <br>either the general population, the composition of the entire public <br>school system, or of the qualified applicant pool), a preferential <br>program was required to remedy the lingering effects of de jure <br>segregation in the system. <br>     Given that one of the standards for evaluating narrow <br>tailoring is over- or under-inclusiveness to the purpose, one might <br>ask whether this program is "underinclusive" to address the <br>remedial needs facing the School Committee. The ultimate impact in <br>numbers is small eleven of ninety invitees to the ninth grade, and <br>thirty-seven of 440 to the seventh, were admitted who would not <br>have been if straight rank order admissions had been used. Overall, <br>the preference affects outcome for about 9% of all admittees. The <br>resulting representation of African-Americans and Hispanics in the <br>student body of Boston Latin does not even approach proportionality <br>with the composition of the Boston public school system as a whole, <br>which is 74% African-American and Hispanic. <br>     Wessmann asserts that underinclusivity is evidence that the <br>program is only intended to address an interest in diversity. Where <br>affirmative action deals with selective programs like promotions or <br>competitive schools, however, the impact of the preference may have <br>to be small because of the narrow tailoring requirement that <br>beneficiaries be qualified. Any preference can only respond to <br>remedial needs in proportion to the success of minorities in <br>raising themselves into the qualified pool. Thus, the preference in <br>Stuart, for example, gave "only limited advantage" to minority <br>applicants, increasing their numbers "gradually over time." 951 <br>F.2d at 454. Under the circumstances, there is no grounds for <br>holding that the program here is not narrowly tailored towards the <br>remedial goal because it pursues that goal deliberately. <br>(b) Efficacy of alternative remedies <br>     The Committee adopted race neutral alternatives to work <br>towards a race-blind policy in the future. These alternatives <br>include more extensive schooling (extra classes during the school <br>year and summer school), enhanced school programs (the advanced <br>work classes), and admissions test preparatory courses in the <br>public schools feeding into the exam system. However, Professor <br>Edwin Melendez, a School Committee member, described the <br>alternatives as "not a panacea to deal with the issue of unequal <br>access overnight," but rather as "definitely a long-term strategy." <br>The alternatives did not address adequately the problem of urgency. <br>     The School Committee also considered alternative admissions <br>plans detailed by an outside consulting firm. Consideration of <br>these proposals was delegated to a special ad hoc Task Force, <br>composed of a broad array of concerned individuals and experts <br>including two members of the School Committee, Professor Charles <br>Ogletree of Harvard Law School, several individuals with experience <br>in formulating affirmative action programs, and numerous public <br>figures with personal connections to Boston Latin from various <br>ethnic communities within the city. The Task Force held eight <br>committee meetings and five neighborhood hearings, all open to the <br>public. The Task Force members discussed and evaluated the <br>consultant's initial proposals and then worked closely with the <br>consultants until a plan emerged that was satisfactory to the <br>remedial needs at issue here. This plan was presented by the Task <br>Force chairs to the School Committee, which also heard the views of <br>the dissenting members of the Task Force. Further public hearings <br>were held to consider the final Task Force report before it was <br>adopted by the Committee.  There is no indication in the record <br>that any less race conscious program was ever proposed to the <br>Committee (before or during this litigation) which could have <br>effected immediate remedial relief while simultaneously maximizing <br>the quality of the student body. <br>     Relying on Podberesky v. Kirwan, 38 F.3d 147, 160-61 (4th Cir. <br>1994), Wessmann argues that the Committee must show that a <br>race-neutral policy was first tried, not just considered, and that <br>it failed to accomplish the goal in question. In that case, <br>however, Podberesky himself submitted the proposed race neutral <br>plan which piqued the interest of the Fourth Circuit. His plan had <br>obviously not been considered by the university. In this case, <br>several race neutral plans presented by the consulting firm to the <br>Committee were rejected after consideration as inadequate to the <br>purpose of immediate remediation. Moreover, there is no Supreme <br>Court authority for the proposition that implementation of a <br>racially-preferential plan must be preceded by a failed race- <br>neutral attempt to accomplish the same goals. <br> <br>The Majority's Narrow Tailoring Critique <br>     The majority cites three narrow tailoring deficiencies in the <br>Committee's admissions program: (1) African-American and Hispanic <br>applicants from private schools were by definition not hurt by the <br>inadequacies of the public schools, and thus should not be allowed <br>to benefit from any remedial program; (2) basing admissions on the <br>composition of the remaining qualified applicant pool will not <br>necessarily benefit African-Americans and Hispanics, despite the <br>fact that the program is predicated on remedying past <br>discrimination against those groups; furthermore, the program <br>benefits racial groups not victimized by discrimination in the <br>Boston schools; and (3) the program does not directly address the <br>problem of lower teacher expectations.  The subtext of these <br>arguments is a suggestion that the program is justifiable only on <br>racial diversity grounds, and that it is tailored only towards a <br>form of racial balancing. <br>1. The inclusion of minority applicants from private schools <br>     Our Constitution has always protected the right of parents to <br>choose a school by moving to another district, by opting into a <br>suburban busing program like METCO, or by sending their children <br>to private school. It therefore seems incongruous to punish the <br>initiative of those who removed their children from an educational <br>environment tainted by vestiges of discrimination. Moreover, there <br>is no reason to assume that leaving the public school system was <br>not in itself a burden on these families. If there were hardships <br>involved for families that fled the public schools (tuition, <br>transportation, adjusting in general to the transition), those <br>hardships could be fairly linked to the past discrimination that <br>made the public schools an unacceptable environment for their <br>children in the first place. <br>2. Potential disfavoring of groups subject to past discrimination; <br>separate categorization of whites, Asians and Native Americans <br>     The majority notes that Hispanics, "archetypical victims of <br>discrimination," could potentially be disfavored by the program <br>under a hypothetical scenario whereby their representation in the <br>remaining qualified applicant pool was concentrated near the top of <br>the composite score rankings.  That potential for Hispanics (or, <br>for that matter, African-Americans) to be disfavored at Boston <br>Latin suggests some limitations in the Committee's remedial <br>program. Those limitations do not discredit the program.  If the <br>facts in one particular year were so anomalous that the program <br>disfavored either African-Americans or Hispanics, the case-by-case <br>flexibility documented above could be invoked to remedy the <br>anomaly. <br>     The majority raises a troubling point when it questions the <br>School Committee's separate categorization of Asians under the <br>admissions program's racial/ethnic guidelines. Perhaps it would <br>have been preferable to group Asians together with whites and any <br>other identifiable groups against whom there was no asserted <br>history of discrimination. However, in the context of the long <br>history of de jure discrimination against African-Americans and <br>Hispanics in the Boston school system, this separate categorization <br>of Asians does not undermine the fundamental remedial purpose of <br>the admissions program. Moreover, the record suggests the <br>possibility of a remedial interest with regard to Asians. There is <br>evidence of a significant language-skills achievement gap for Asian <br>students in the public schools.  If there is future litigation <br>about this aspect of the program, more achievement gap evidence <br>relating to Asians might be produced. <br>3. Not directly addressing lower teacher expectations <br>     The majority opinion and the concurrence both find a narrow <br>tailoring flaw because the School Committee's admissions program <br>does not directly address the problem of lower teacher expectations <br>for African-American and Hispanic students, identified by the <br>School Committee as a vestige of discrimination and a substantial <br>causal factor of the achievement gap. The admissions program is <br>designed to remedy the impact of lower teacher expectations, and <br>not the expectations themselves and is perfectly acceptable as <br>such. Although the School Committee has a responsibility to <br>eliminate the vestiges of discrimination from the system over time, <br>the Committee also has a responsibility to address the harm those <br>vestiges currently impose on African-American and Hispanic <br>students. <br>     If the School Committee was not simultaneously addressing the <br>underlying teacher expectations problem, there might be a narrow <br>tailoring concern related to the duration of the remedial program. <br>The School Committee is, in fact, addressing this underlying <br>problem. It has been making substantial efforts towards instituting <br>a standardized curriculum in the primary schools. A standard <br>curriculum sets forth what is expected from every student, <br>independently of what any individual teacher might otherwise expect <br>from any individual student. Under the Focus on Children reform <br>initiative, adopted in August 1996, citywide curricular standards <br>are to be implemented within five years. The School Committee is <br>also making more direct efforts to address the problem of teacher <br>bias. For several years it has retained the services of the <br>Efficacy Institute, an educational firm which had previously <br>undertaken large-scale teacher reeducation in the New York City <br>public schools. <br>                               V. <br>Conclusion <br>     The majority characterizes my dissent as "wishful thinking" <br>about the meaning of Wygant, Croson and other Supreme Court <br>precedents in this difficult area of the law. Not surprisingly, I <br>disagree. I believe that I am faithful to those precedents and, <br>unlike the majority, apply them accurately to the evidence <br>presented to the district court. <br>     The majority goes awry because it reads Wygant's requirement <br>of a "strong basis in evidence" for an affirmative action program <br>and Croson's reference to a "searching judicial inquiry" into the <br>justification for an affirmative action program as demands for <br>evidence grounded in quantifiable social science data rather than <br>human judgments.  There is no such demand in Wygant, Croson or any <br>other Supreme Court precedent. Numbers are not the only source of <br>the requisite degree of certainty about low teacher expectations <br>for minorities and causation. In this case, the extensive <br>observations of experienced administrators in the Boston public <br>schools, supplemented by the testimony of a highly qualified expert <br>who recognized in the Boston public schools a phenomenon he had <br>studied extensively elsewhere, were as probative as the statistical <br>surveys and regression analyses demanded by the majority. <br>     The majority also goes awry because it uses Croson's reference <br>to a "searching judicial inquiry" as the basis for disregarding two <br>critical points made by Justice O'Connor in Wygant: <br>     (1) The strong basis in evidence required of a public <br>     entity defending an affirmative action program in court <br>     is provided by evidence sufficient to support a prima <br>     facie case of discrimination against the favored <br>     minority. <br> <br>     (2) "In 'reverse discrimination' suits, as in any other <br>     suit, it is the plaintiffs who must bear the burden of <br>     demonstrating that their rights have been violated." <br> <br>We applied this evidentiary framework in Stuart, thereby signaling <br>to the district court its applicability in this affirmative action <br>case. The district court followed that teaching, and we should as <br>well. <br>     For all of the reasons stated herein, I would affirm the <br>judgment of the district court.</pre>

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