United States Court of Appeals For the First Circuit

Nos. 21–1303 22–1144

BOSTON PARENT COALITION FOR ACADEMIC EXCELLENCE CORP.,

Plaintiff, Appellant,

v.

THE SCHOOL COMMITTEE FOR THE CITY OF BOSTON; ALEXANDRA OLIVER- DÁVILA; MICHAEL O'NEILL; HARDIN COLEMAN; LORNA RIVERA; JERI ROBINSON; QUOC TRAN; ERNANI DEARAUJO; BRENDA CASSELLIUS, Defendants, Appellees,

THE BOSTON BRANCH OF THE NAACP; THE GREATER BOSTON LATINO NETWORK; ASIAN PACIFIC ISLANDER CIVIC ACTION NETWORK; ASIAN AMERICAN RESOURCE WORKSHOP; MAIRENY PIMENTAL; H.D.,

Defendants, Intervenors, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Kayatta, Howard, and Thompson, Circuit Judges.

Christopher M. Kieser, Joshua P. Thompson, and Pacific Legal Foundation, with whom William H. Hurd, and Eckert Seamans Cherin & Mellott, LLC, were on brief for appellant. Kay H. Hodge, John M. Simon, and Stoneman, Chandler & Miller LLP, with whom Lisa Maki, Legal Advisor, Boston Public Schools, were on brief for appellees. Doreen M Rachal, and Sidley Austin LLP, with whom Susan M. Finegan, Andrew N. Nathanson, Mathilda S. McGee-Tubb, and Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., were on brief for intervenors-appellees. Rachael S. Rollins, United States Attorney, Lisa Brown, General Counsel, U.S. Department of Education, Daniel Kim, and Jessica Wolland, Attorneys, Office of the General Counsel, U.S. Department of Education, Kristen Clarke, Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, Nicolas Y. Riley, and Sydney A.R. Foster, Attorneys, Civil Rights Division, were on brief for the United States of America, amicus curiae. Amanda Buck Varella, Melanie Dahl Burke, and Brown Rudnick LLP, with whom Francisca D. Fajana, Niyati Shah, and Eri Andriola, were on brief for Asian Americans Advancing Justice-AAJC, Autism Sprinter, Boston University Center for Antiracist Research, Citizens for Public Schools, Edvestors, GLBTQ Legal Advocates & Defenders, Hamkae Center, Hispanic Federation, Inc., Jamaica Plain Progressives, LatinoJustice PRLDEF, Massachusetts Advocates for Children, Massachusetts Appleseed Center for Law and Justice, Massachusetts Law Reform Institute, Mass Insight Education and Research Institute, Montgomery County Progressive Asian American Network, and Progressive West Roxbury/Roslindale, amici curiae. Maura Healey, Attorney General of Massachusetts, Elizabeth N. Dewar, State Solicitor, Ann E. Lynch, and David Ureña, Assistant Attorneys General of Massachusetts, were on brief for Massachusetts, California, Colorado, the District of Columbia, Hawai'i, Illinois, Maine, Maryland, Minnesota, Nevada, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, and Washington, amici curiae. Michael Sheetz, Adam S. Gershenson, Michael McMahon, Robby K.R. Saldaña, and Cooley LLP, were on brief for the Anti-Defamation League, Black Economic Council of Massachusetts, Inc., Boston Bar Association, The Greater Boston Chamber of Commerce, Jewish Alliance for Law and Social Action, King Boston, and Massachusetts Immigrant and Refugee Advocacy Coalition, amici curiae. Sarah Hinger, Woo Ri Choi, Matthew Segal, Ruth A. Bourquin, Jon Greenbaum, David Hinojosa, and Genevieve Bonadies Torres, were on brief for the American Civil Liberties Union Foundation, American Civil Liberties Union of Massachusetts, Inc., Lawyers' Committee for Civil Rights Under Law, and National Coalition on School Diversity, amici curiae. Paul Lantieri III, and Ballard Spahr LLP, were on brief for the National Association for Gifted Children, amicus curiae. December 19, 2023 KAYATTA, Circuit Judge. We consider for a second time

this appeal challenging on equal protection grounds a temporary

admissions plan (the "Plan") for three selective Boston public

schools. Previously, we denied a motion by plaintiff Boston Parent

Coalition to enjoin use of the Plan until this appeal could be

decided on the merits. In so doing, we held that the Coalition

failed to show that it would likely prevail in establishing that

defendants' adoption of the Plan violated the equal protection

rights of the Coalition's members.

We turn our attention now to the merits of the appeal

after full briefing and oral argument. For the following reasons,

we find our previously expressed skepticism of the Coalition's

claim to be well-founded. We therefore affirm the judgment below.

We also explain why events since we last opined in this case do

not mandate a different resolution.

I.

A full discussion of the facts and litigation giving

rise to this appeal can be found in the prior opinions of this

court and the district court. See Bos. Parent Coal. for Acad.

Excellence Corp. v. Sch. Comm. of City of Bos. (Boston Parent I),

, 41–43 (1st Cir. 2021); Bos. Parent Coal. for Acad.

Excellence Corp. v. Sch. Comm. of City of Bos. (Indicative Ruling),

No. CV 21–10330,

, at *3–4 (D. Mass. Oct. 1, 2021);

Bos. Parent Coal. for Acad. Excellence Corp. v. Sch. Comm. of City

- 4 - of Bos., No. 21–10330,

(D. Mass. Apr. 15, 2021)

withdrawn by Bos. Parent Coal. for Acad. Excellence Corp. v. Sch.

Comm. of City of Bos., No. 21–10330,

(D. Mass.

July 9, 2021). We provide now only an abbreviated review of the

record, focusing on those points pertinent to the appeal before

us.

Boston Latin Academy, Boston Latin School, and the

John D. O'Bryant School (collectively known as the "Exam Schools")

are three of Boston's selective public schools. For the twenty

years preceding the 2021–2022 school year, admission to the Exam

Schools was based on applicants' GPAs and their performance on a

standardized test. The schools combined each applicant's GPA and

standardized test score to establish a composite score ranking

applicants citywide. Exam School seats were then filled in order,

beginning with the student with the highest composite score, based

on the students' ranked preferences among the three schools. The

racial/ethnic demographics for the students offered admission to

the Exam Schools for the 2020–2021 school year were: White (39%);

Asian (21%); Latinx (21%); Black (14%); and mixed race (5%). By

contrast, the racial/ethnic demographics for the citywide school-

- 5 - age population in Boston that same year were: White (16%);

Asian (7%); Latinx (36%); Black (35%); and mixed race (5%).1

During the summer of 2019, Boston Public Schools

conducted several analyses of how potential changes to admissions

criteria would affect racial/ethnic demographics at the Exam

Schools. Following this process, Boston Public Schools developed

a new exam to be administered to Exam School applicants beginning

with the 2021–2022 school year. However, when COVID-19 struck,

the Boston School Committee determined that the Exam School

admissions criteria for 2021–2022 needed revision in light of the

pandemic's impact on applicants during both the 2019-2020 and the

prospective 2020–2021 school years.

In March 2020, citing the COVID-19 pandemic,

Massachusetts Governor Charlie Baker suspended all regular, in-

person instruction and other educational operations at K–12 public

schools through the end of the 2019–2020 school year. Schools

transitioned to full remote learning. Pandemic-related gathering

restrictions made administering the in-person test difficult.

The Boston School Committee convened a Working Group to

recommend revised admissions procedures for the 2021–2022 school

year. This group met regularly from August to October 2020,

1 We use the listed racial classifications only to be consistent with the district court's usage, to which neither party lodges any objection.

- 6 - reviewing extensive data regarding the existing Exam School

admissions process, alternative selection methods used in other

cities, and potential impacts of different proposed methodologies

on students. As part of its process, the Working Group completed

a so-called "equity impact statement" that stated the desired

outcomes of the revised admissions criteria recommendation as

follows:

Ensure that students will be enrolled (in the three exam high schools) through a clear and fair process for admission in the 21–22 school year that takes into account the circumstances of the COVID-19 global pandemic that disproportionately affected families in the city of Boston.

Work towards an admissions process that will support student enrollment at each of the exam schools such that it better reflects the racial, socioeconomic and geographic diversity of all students (K–12) in the city of Boston.

As part of its process, the Working Group reviewed multiple

simulations of the racial compositions that would result from

different potential admissions criteria.

The Working Group presented its initial recommendations

to the Boston School Committee on October 8, 2020. During this

meeting, members of the Working Group discussed historical racial

inequities in the Exam Schools, and previous efforts to increase

equity across the Exam Schools. The Working Group also discussed

a substantial disparity in the increase in fifth grade GPAs for

- 7 - White and Asian students as compared to Black and Latinx students,

the disproportionate negative impact of the COVID-19 pandemic on

minority and low-income students, a desired outcome of "rectifying

historic racial inequities afflicting exam school admissions for

generations," and, as one School Committee member stated, the "need

to figure out again how we could increase these admissions rates,

especially for Latinx and Black students." Another School

Committee member stated that she "want[ed] to see [the Exam

Schools] reflect the District[,]" and that "[t]here's no excuse

. . . for why they shouldn't reflect the District, which has a

larger Latino population and Black African-American population."

The School Committee met on October 21, 2020, to discuss

the Working Group's plan. At that meeting, race again became a

topic of discussion. Some School Committee members voiced concerns

that the revised plan, while an improvement, "actually [did not]

go far enough" because it would likely still result in a greater

percentage of White and Asian students in exam schools than in the

general school-age population. During this meeting, School

Committee chairperson Michael Loconto made comments mocking the

names of some Asian parents. Two members of the School Committee,

Alexandra Oliver-Dávila and Lorna Rivera, texted each other

regarding the comments, with one saying "I think he was making fun

of the Chinese names! Hot mic!!!" and another responding that she

- 8 - "almost laughed out loud." The chairperson apologized and resigned

the following day.

Subsequently, the Working Group recommended and the

School Committee adopted the Plan. With test administration not

feasible during the COVID-19 pandemic, the Plan relied on GPAs to

select Exam School admittees for the 2021–2022 school year. It

first awarded Exam School slots to those students who, citywide,

had the top 20% of the rank-ordered GPAs. The remaining applicants

were then divided into groups based on the zip codes in which they

resided (or, in the case of students without homes or in state

custody, to a designated zip code).

Next, starting with the highest ranked applicants living

in the zip code with the lowest median family income (for families

with school age children), and continuing with applicants in each

zip code in ascending order of the zip code's median family income,

10% of the remaining seats at each of the three Exam Schools were

filled based on GPA and student preferences. Ten rounds of this

process filled more or less all remaining available seats in the

three schools.

The Coalition, a corporation acting on behalf of some

parents and their children who reside in Boston, sued the School

Committee, its members, and the Boston Public Schools

superintendent. The Coalition asserted that the Plan violated the

Equal Protection Clause of the Fourteenth Amendment of the United

- 9 - States Constitution and chapter 76, section 5 of the Massachusetts

General Laws by intentionally discriminating against White and

Asian students. Boston Parent I,

. After the

Coalition moved for a preliminary injunction to bar the School

Committee from implementing the Plan, the district court

consolidated a hearing on the motion with a trial on the merits

following the parties' submission of a Joint Agreed Statement of

Facts. The district court found the Plan to be constitutional.

The Coalition subsequently appealed that decision on the merits

and sought interim injunctive relief from this Court pending

resolution of the merits appeal. We denied the interim request

for injunctive relief, in large part because we determined the

Coalition was unlikely to succeed on the merits.

.

Following our decision, on June 7, 2021, the Boston

Globe published previously undisclosed evidence of an additional

text-message exchange between School Committee members Oliver-

Dávila and Rivera during the Board Meeting at which the Committee

adopted the Plan. Reacting to the Committee chairman's mocking of

Asian parent names, Oliver-Dávila texted Rivera "[b]est s[chool]

c[ommittee] m[ee]t[in]g ever I am trying not to cry." Rivera

responded, "Me too!! Wait til the White racists start yelling

[a]t us!" Oliver-Dávila then responded "[w]hatever . . . they are

delusional." Additionally, Oliver-Dávila texted "I hate WR,"

which the parties seem to agree is short for West Roxbury, a

- 10 - predominantly White neighborhood. Rivera then responded "[s]ick

of westie whites," to which Oliver-Dávila replied "[m]e too I

really feel [l]ike saying that!!!!"

Armed with these revelations, the Coalition moved for

relief under Federal Rule of Civil Procedure 60(b), asking the

district court to reconsider its judgment or at least allow more

discovery. Following an indicative ruling by the district court

pursuant to Federal Rule of Civil Procedure 12.1, we remanded the

case to the district court so that it could rule formally on the

Coalition's Rule 60(b) motion. The district court deemed the text

messages "racist," and found that they showed that "[t]hree of the

seven School Committee members harbored some form of racial

animus." Bos. Parent Coal.,

, at *15. The district

court nonetheless denied the Coalition's motion, finding that

relief under Rule 60(b) was not warranted on at least two grounds.

at *13–16. First, the district court found that the Coalition

could have discovered the new evidence earlier with due diligence,

and that it was only the result of the Coalition's deliberate

litigation strategy -- namely, its theory that it need not show

animus to prove intentional discrimination -- that no such evidence

was discovered. Id. at *15. Second, the district court found

that the new evidence would not change the result were a new trial

to be granted. Id. at *15–16.

- 11 - As to the second finding, the district court noted that

"it is clear from the new record that the race-neutral criteria

were chosen precisely because of their effect on racial

demographics," that is, "but for the increase in Black and Latinx

students at the Exam Schools, the Plan's race-neutral criteria

would not have been chosen." Id. at *15. However, the court

concluded that the new evidence in question did not cure the

Coalition's persistent failure to show any legally cognizable

disparate impact on White or Asian students under the facially

neutral Plan. Id. The district court thus denied the Coalition's

Rule 60(b) motion. Id. at *17.

Meanwhile, following our earlier denial of the

Coalition's request for injunctive relief, Boston Public Schools

implemented the Plan for admissions to the Exam Schools for the

2021–2022 school year. Shortly thereafter, the challenged Plan

was replaced with a plan based on GPA, a new standardized

examination, and census tracts. The Coalition does not challenge

the current admissions plan in this appeal.

With its request to enjoin use of the Plan now moot, the

Coalition still persists with this appeal, pointing to five

children of its members who were denied admission to the Exam

Schools in 2021 despite allegedly having higher GPAs than those of

some students in other zip codes who were admitted. The Coalition

asks that we remand the case to the district court with

- 12 - instructions to order the School Committee to admit these five

students to an Exam School.2 Additionally, the Coalition appeals

the district court's denial of its Rule 60(b) motion.

II.

Before we turn to the merits, we address a threshold

question of justiciability. The Coalition argues that if the Plan

had not been adopted, the City would have based invites to the

Exam Schools on GPA in a citywide competition, just as it did for

20% of the slots. And in that event, all five students for whom

the Coalition seeks relief would have been admitted. The School

Committee argues that the Coalition has no Article III standing to

seek relief on behalf of five students who are not parties to this

lawsuit, and that even if it did, there is no basis for granting

the requested relief.

An association has standing to bring suit on behalf of

its individual members when: "(a) its members would otherwise have

standing to sue in their own right; (b) the interests it seeks to

protect are germane to the organization's purpose; and (c) neither

the claim asserted nor the relief requested requires the

2 Defendants contend that it is too late for the Coalition to revise its request for relief. But the Coalition promptly revised its request as events unfolded in the district court. And in these circumstances, granting such a revised request is not beyond the court's "broad and flexible" power to fashion an equitable remedy. See Morgan v. Kerrigan,

(1st Cir. 1976).

- 13 - participation of individual members in the lawsuit." Coll. of

Dental Surgeons of P.R. v. Conn. Gen. Life Ins. Co.,

(1st Cir. 2009) (quoting Hunt v. Wash. State Apple Advertising

Comm'n,

(1977)). Here, only the third of these

so-called Hunt factors is in dispute. The School Committee

contends that, because the Coalition now seeks injunctive relief

for five individual members who are not themselves plaintiffs in

this action, their individual participation in the lawsuit is

required. Therefore, they argue, the Coalition lacks independent

associational standing under Hunt.

"There is no well-developed test in this circuit as to

how the third prong of the Hunt test -- whether 'the claim asserted

[or] the relief requested requires the participation of individual

members in the lawsuit,' -- applies in cases where injunctive

relief is sought." Pharm. Care Mgmt. Ass'n v. Rowe,

,

313–14 (1st Cir. 2005) (Boudin, J. & Dyk, J., concurring) (quoting

Hunt,

). Here, granting the Coalition's requested

remedy would certainly require some factual showing that some or

all of the five students would have been admitted to an Exam School

but for the adoption of the Plan. However, given the documented

and apparently uncontested nature of the student-specific facts

likely to be included in such a showing (i.e., GPA and school

preference), it seems unlikely that any of the students would need

to do much, if anything, in the lawsuit. Moreover, the Coalition's

- 14 - requested remedy, if granted, would clearly "inure to the benefit

of those members of the association actually injured."

at 307

(quoting Warth v. Seldin,

(1975)).

The School Committee responds that if it did not use zip

codes, it would not have chosen to use GPAs citywide as its sole

selection criterion instead. It notes that such a GPA-only

admissions plan has not been used for over twenty years, and

therefore that the basis for the Coalition members' asserted

injuries is purely speculative. Moreover, the School Committee

questions the evidentiary basis of the assertions on behalf of the

unnamed children.

These arguments strike us as better suited to

challenging the merits of the Coalition's claims, not its standing

to assert those claims. In substance, the School Committee

disputes what would have happened had it not used the Plan. And

on that point, the record is not clear enough to dismiss the

Coalition's position as speculative. Moreover, at this stage, we

need only note that courts have broad authority to fashion

equitable relief following a finding of an equal protection

violation. See Swann v. Charlotte-Mecklenburg Bd. of Educ.,

(1971) ("Once a right and a violation have been shown,

the scope of a district court's equitable powers to remedy past

wrongs is broad, for breadth and flexibility are inherent in

equitable remedies."). Therefore, we see no bar -- at least at

- 15 - the threshold of justiciability -- to the Coalition's claim for

equitable relief on behalf of some of its individual members. We

now turn to the merits.

III.

A.

When reviewing the merits of a district court's decision

on a stipulated record, we review legal conclusions de novo and

factual findings for clear error. See Consumer Data Indus. Ass'n

v. Frey,

(1st Cir. 2022). Yet, "when the issues on

appeal 'raise[ ] either questions of law or questions about how

the law applies to discerned facts,' such as whether the proffered

evidence establishes a discriminatory purpose or a

disproportionate racial impact, 'our review is essentially

plenary.'" Boston Parent I,

(quoting Anderson ex

rel. Dowd v. City of Bos.,

(1st Cir. 2004)).

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

conclusions, including the level of scrutiny it applied when

evaluating the constitutionality of the challenged action."

B.

The Fourteenth Amendment prohibits "all governmentally

imposed discrimination based on race," save for those rare and

compelling circumstances that can survive the daunting review of

strict scrutiny. Students for Fair Admissions, Inc. v. President

& Fellows of Harvard Coll.,

, 206 (2023) (quoting

- 16 - Palmore v. Sidoti,

(1984)). The Equal Protection

Clause's "central purpose" is to "prevent the States from

purposefully discriminating between individuals on the basis of

race." See Shaw v. Reno,

(1993). Generally,

purposeful racial discrimination violative of the Equal Protection

Clause falls into three categories of state action that merit

strict scrutiny: (1) where state action expressly classifies

individuals by race (see, e.g., Students for Fair Admissions, 600

U.S. at 194–95; Grutter v. Bollinger,

, 327–28 (2003));

(2) where a policy is facially neutral but is in fact unevenly

implemented based on race (see Yick Wo v. Hopkins,

,

373–74 (1886)); and (3) where a facially race-neutral, and evenly

applied, policy results in a racially disparate impact and was

motivated by discriminatory intent (see Vill. of Arlington Heights

v. Metro. Hous. Dev. Corp.,

, 264–65 (1977); Washington

v. Davis,

(1976)).

The Coalition's principal arguments for challenging the

Plan fall into category (3) -- an evenly applied, facially race-

neutral plan that was motivated by a discriminatory purpose and

has a disparate impact. But the record provides no evidence of a

relevant disparate impact. And the evidence of defendants' intent

to reduce racial disparities is not by itself enough to sustain

the Coalition's claim. Our reasoning follows.

- 17 - 1.

The Coalition makes two attempts to show that the School

Committee's use of the Plan to determine Exam School admissions

had a disparate impact on the Coalition's members. We address

each in turn.

a.

To prove that the Plan had a disparate impact on its

members, the Coalition first points out that White and Asian

students made up a smaller percentage of the students invited to

join the Exam Schools under the Plan than in the years before the

Plan was implemented. Specifically, with respect to the prior

year, the percentages of invited students classified as White

dropped from 40% to 31%, while the percentage classified as Asian

dropped from 21% to 18%.

The Coalition's reliance on these raw percentages

without the benefit of some more robust expert analysis serves

poorly as proof that the observed changes were caused by the Plan

rather than by chance. See Boston Parent I,

(noting

that the Coalition "offers no analysis or argument for why these

particular comparators, rather than a plan based on random

selection, are apt for purposes of determining adverse disparate

impact"); see also Coal. for TJ v. Fairfax Cnty. Sch. Bd.,

, 881 (4th Cir. 2023).

- 18 - Nevertheless, given the size of the overall pool, the

reductions cited by the Coalition may be at least minimally

significant. Notably, when the defendants applied the Plan to the

prior year's admission applications in a test-run simulation, it

produced virtually the same percentage changes. And defendants

have never claimed that the changes were entirely random. To the

contrary, the Plan's effects were expected, at least in part, by

those who knew the schools best: the defendants themselves. We

therefore do not rest our decision on the lack of expert evidence

that changes in the racial makeup of the admitted class in 2021–

2022, as compared to 2020–2021, were not the result of mere chance.

Rather, we find that the Coalition fails to show

disparate impact for another, more fundamental reason. To see why

this is so, we find it instructive to consider disparate impact

theory in its most customary form -- a statutory cause of action

for unintentional discrimination in certain settings, such as

employment. See, e.g., Jones v. City of Bos.,

(1st Cir. 2014) (applying Title VII, 42 U.S.C. § 2000e–2(k)). A

theory of unintentional discrimination cannot, by itself,

establish liability in an equal protection case such as this, which

requires proof of both disparate impact and discriminatory intent.

See Arlington Heights, 429 U.S. at 266–68. Our point, instead, is

that even when sufficient to establish liability in its native

habitat of Title VII, disparate impact theory does not call into

- 19 - question the introduction of facially neutral, and otherwise

valid, selection criteria that reduce racial disparities in the

selection process. In fact, where applicable, disparate-impact

discrimination jurisprudence does just the opposite. As between

alternative, equally valid selection criteria, it encourages the

use of the criterion expected to create the least racial disparity

unless there is some good reason to do otherwise. Cf. 42 U.S.C.

§ 2000e–2(k)(1)(A)(ii) and (C).

In this manner, disparate-impact analysis aims to

counter the use of facially neutral policies that "'freeze' the

status quo of prior discriminatory . . . practices." Griggs v.

Duke Power Co., 401 U.S 424, 430 (1971). That is to say, it

encourages precisely what the Coalition claims the Plan has done

here: as between equally valid selection processes that meet the

selector's legitimate needs, to use the one that reduces under-

representation (and therefore over-representation as well). So,

in seeking to leverage a disparate-impact theory of discrimination

against the Plan for its alleged reduction -- but not reversal --

of certain races' stark over-representation among Exam School

invitees, the Coalition has it backwards.

To be sure, where race itself is used as a selection

criterion, certainly a before-and-after comparison would provide

relevant support for an equal protection challenge. In that

context, any "negative" effect resulting from the use of race would

- 20 - be relevant because "race may never be used as a 'negative.'"

Students for Fair Admissions, 600 U.S. at 218. Here, though, the

Plan did not use the race of any individual student to determine

his or her admission to an Exam School. And the Coalition offers

no evidence that geography, family income, and GPA were in any way

unreasonable or invalid as selection criteria for public-school

admissions programs.

In sum, even assuming the Coalition's statistics show

non-random demographic changes in the pool of Exam School invitees

between 2020–2021 and 2021–2022 as a result of the Plan's

implementation, those changes simply show that as between equally

valid, facially neutral selection criteria, the School Committee

chose an alternative that created less disparate impact, not more.3

To rule otherwise would turn "the previous status quo into an

immutable quota" and risk subjecting any new policy that "might

impact a public institution's racial demographics -- even if by

wholly neutral means -- to a constitutional attack." Coal. for

TJ, 68 F.4th at 881 (internal quotation omitted).

b.

This brings us to the Coalition's alternative attempt to

employ disparate-impact theory to prove prohibited intentional

3 Moreover, by not using zip codes to award 20% of the invitations, the School Committee opted not to use an approach that would have reduced racial disparities even more.

- 21 - race discrimination. The Coalition contends that the Plan, even

when measured against a process of random selection, had a

disparate impact on White and Asian applicants. To make this

argument, the Coalition first notes that the overall acceptance

rate for applicants for the 2021–2022 school year was 58.5%. And

it posits that a random distribution would result in an even

application of that 58.5% rate across each zip code. The Coalition

then isolates certain zip codes where the population was either

"predominantly" (as in 55% or greater) White/Asian or

Black/Latinx, and juxtaposes those zip codes' respective

acceptance rates under the Plan with those under a hypothetical

58.5% comparator. Following this logic, the Coalition concludes

that the Plan resulted in 66 fewer than expected spots allocated

across ten predominantly White/Asian zip codes, and 57 more spots

across seven predominantly Black/Latinx zip codes. Using this

same data, the Coalition also argues that because the average GPA

of the admitted students from the predominantly White/Asian zip

codes was higher than that from the predominantly Black/Latinx zip

codes, the Plan made it disproportionally more difficult for White

and Asian students to gain acceptance.

In our view, this backfilled analysis -- crafted by

counsel in an appellate brief -- falls woefully short of the mark.

The analysis uses GPA data from only ten of the twenty zip codes

that the Coalition identifies as "predominantly" White and Asian.

- 22 - It also neglects another two zip codes where, ostensibly, there

was neither a predominantly White/Asian nor Black/Latinx

population under the Coalition's definition. And all the while,

the Coalition never explains why 55% should be the relevant

threshold, nor why aggregating populations of separate racial

groups is methodologically coherent.4

Moreover, the Coalition's analysis rests on a sleight of

hand. It counterfactually assumes that if White/Asian students

comprised 55% or more of the students in a given zip code, then

every marginal student in that zip code who just missed out on

acceptance was also White or Asian. Suffice it to say, there is

zero evidence for this assumption. The bottom line remains the

same: White and Asian students respectively made up approximately

16% and 7% of the eligible school-age population and 31% and 40%

of the successful applicants. Use of the Plan caused no relevant

disparate impact on those groups.5 Cf. Coal. for TJ, 68 F.4th at

4 Intervenors-appellees raise additional alarms about the Coalition's data, noting that several zip codes cited by the Coalition as "predominantly" White and Asian actually have a greater Black or Latinx population than Asian. 5 The district court found that "the Coalition's evidence of disparate impact was a projection of a prior plan that showed White students going from representing 243 percent of their share of the school-age population in Boston to 200 percent, and Asian students going from representing 300 percent of their share of the school- age population in Boston to 228 percent." Bos. Parent Coal.,

, at *15. As to the actual admissions data, the district court made no such findings, but we take notice that for seventh- grade applicants, the Plan resulted in White students, who

- 23 - 879 (finding no disparate impact on Asian-American students under

school admissions policy where "those students have had greater

success in securing admission to [the school] under the policy

than students from any other racial or ethnic group").

2.

We turn next to the Coalition's argument that it need

not prove a disparate impact per se. Rather, the Coalition

contends that any change in the racial composition of admitted

students is unconstitutional if the change was intended -- even if

it is the result of facially neutral and valid selection criteria

that merely reduce, but do not reverse, the numerical over-

representation of a particular race. There are several problems

with this theory.

First, the Coalition points to no case in which a

facially neutral selection process was found to violate the Equal

Protection Clause based on evidence of intent without any corollary

disparate impact. To the contrary, to successfully challenge the

use of a facially neutral, and otherwise bona fide, selection

criterion, the Coalition must prove both improper intent and

disparate impact. Anderson ex rel. Dowd,

(noting

that "[c]ourts can only infer that an invidious racial purpose

constitute 16% of the Boston school-age population, receiving 31% of the invitations, and Asian students, who constitute 7% of that population, receiving 18% of the invitations.

- 24 - motivated a facially neutral policy when that policy creates

disproportionate racial results"); see also Lewis v. Ascension

Parish Sch. Bd.,

(5th Cir. 2015) ("To subject a

facially race neutral government action to strict scrutiny, the

plaintiff must establish both discriminatory intent and a

disproportionate adverse effect upon the targeted group."); Coal.

for TJ, 68 F.4th at 882 (quoting Palmer v. Thompson,

(1971)) (agreeing and noting that "[n]o case in [the Supreme]

Court has held that a legislative act may violate equal protection

solely because of the motivations of the men who voted for

it . . . ."); Doe ex rel. Doe v. Lower Merion Sch. Dist.,

(3d Cir. 2011) ("Although disproportionate impact, alone,

is not dispositive, a plaintiff must show discriminatory impact in

order to prove an equal protection violation.").

Second, the Coalition's "intent only" theory runs

counter to what appears to be the view of a majority of the members

of the Supreme Court as expressed in Students for Fair Admissions.

There, the Court found that Harvard and UNC's race-conscious

admissions programs violated the Equal Protection Clause. 600

U.S. at 213. But in rejecting the universities' use of an

applicant's race as a means to achieve a racially diverse student

body, three of the six justices in the majority -- with no

disagreement voiced by the three dissenters -- separately stressed

that universities can lawfully employ valid facially neutral

- 25 - selection criteria that tend towards the same result. See id. at

299–300 (Gorsuch, J., with Thomas, J., concurring) (recounting the

argument that the universities "could obtain significant racial

diversity without resorting to race-based admissions practices,"

and noting that "Harvard could nearly replicate [its] current

racial composition without resorting to race-based practices" if

it increased tips for "socioeconomically disadvantaged applicants"

and eliminated tips for "children of donors, alumni, and faculty");

id. at 280 (Thomas, J., concurring) ("If an applicant has less

financial means (because of generational inheritance or

otherwise), then surely a university may take that into account.");

id. at 317 (Kavanaugh, J., concurring) (universities "'can, of

course, act to undo the effects of past discrimination in many

permissible ways that do not involve classification by race'")

(quoting City of Richmond v. J.A. Croson Co.,

(1989) (Scalia, J., concurring in the judgment)).

Granted, no concurring opinion expressly held that a

school may adopt a facially neutral admissions policy precisely

because it would reduce racial disparities in the student body as

compared to the population of eligible applicants. But the message

is clear. Justice Gorsuch, and indeed plaintiff Students for Fair

Admissions itself, identified use of socio-economic status

indicators -- i.e., family income -- as a tool for universities

who "sought" to increase racial diversity. See

at 299–300

- 26 - (Gorsuch, J., with Thomas, J., concurring). And Justice Kavanaugh

wrote that "universities still 'can, of course, act to undo the

effects of past discrimination in many permissible ways.'" Id. at

317 (Kavanaugh, J., concurring) (emphasis added).

Nor is there any reason to suppose that these assurances

do not apply to admission to selective public schools. As Justice

Kennedy wrote in his pivotal concurring opinion in Parents Involved

in Cmty. Schs. v. Seattle Sch. Dist. No. 1, "[i]n the

administration of public schools by the state and local authorities

it is permissible to consider the racial makeup of schools and to

adopt general policies to encourage a diverse student body, one

aspect of which is its racial composition."

(2007) (Kennedy, J., concurring) (internal citation omitted).

Third, holding school officials liable for any reduction

in the statistical over-representation of any racial group, merely

because the change was the intended result of a new facially

neutral and valid selection policy, would deter efforts to reduce

unnecessary racial disparities. A school might base admission on

residence in geographical proximity to the school, on attendance

at specific schools in a lower grade, on tests or GPA, or some

combination of the myriad indicia of students' prior success. A

school might even decide to rely only on a lottery. It hardly

would be surprising to find that a change from one of those

- 27 - selection criteria to another significantly altered the racial

composition of the pool of successful applicants.

Nor would a lack of intent provide any safe harbor given

that responsible school officials would likely attempt to predict

the effects of admissions changes, if for no other reason than to

avoid increasing disparities. And many honest school officials

would admit that as between two equally valid selection criteria,

they preferred the one that resulted in less rather than greater

demographic disparities. In short, any distinction between

adopting a criterion (like family income) notwithstanding its

tendency to increase diversity, and adopting the criterion because

it likely increases diversity, would, in practice, be largely in

the eye of the labeler. Cf. Coal. for TJ, 68 F.4th at 882 (quoting

Palmer,

) ("If the law is struck down for [intent

alone] . . . it would presumably be valid as soon as the

legislature or relevant governing body repassed it for different

reasons.").

To be sure, in striking down Harvard and UNC's race-

conscious plans in Students for Fair Admissions, the Supreme Court

noted that "[w]hat cannot be done directly cannot be done

indirectly," such that "universities may not simply establish

through application essays or other means the regime [the Court

found unlawful]." 600 U.S. at 230 (citation omitted). But we do

not read that admonition as calling into question the use of a

- 28 - bona fide, race-neutral selection criterion merely because it

bears a marginal but significant statistical correlation with

race.

Certainly, Justices Gorsuch, Thomas, and Kavanaugh, in

joining the majority opinion, did not read the Court's opinion to

foreclose use of the very selection criteria to which their

concurrences pointed as permissible race-neutral alternatives to

the race-conscious admissions programs before the Court.

Of course, at some point, facially neutral criteria

might be so highly correlated with an individual's race and have

so little independent validity that their use might fairly be

questioned as subterfuge for indirectly conducting a race-based

selection process. In that event, nothing in this opinion

precludes a person harmed by such a scheme from pursuing an equal

protection claim under the authority of Students for Fair

Admissions. Here, though, admission under the Plan correlated

positively with being White or Asian, the only groups numerically

over-represented under the Plan. And the Plan's prosaic selection

criteria -- residence, family income, and GPA -- can hardly be

deemed otherwise unreasonable. Nor is this a case in which a

school committee settled on and employed a valid selection

criterion, and then simply threw out the results because the

committee did not like the racial demographics of the individuals

selected.

- 29 - Thus, we find no reason to conclude that Students for

Fair Admissions changed the law governing the constitutionality of

facially neutral, valid secondary education admissions policies

under equal protection principles. For such policies to merit

strict scrutiny, the challenger still must demonstrate (1) that

the policy exacts a disparate impact on a particular racial group

and (2) that such impact is traceable to an invidious

discriminatory intent. See Arlington Heights, 429 U.S. at 264–

65; see also Coal. for TJ, 68 F.4th at 879; Lower Merion Sch.

Dist.,

; Hayden v. County of Nassau,

(2d Cir. 1999); Raso v. Lago,

(1st Cir. 1998).

As we previously stated:

[O]ur most on-point controlling precedent, Anderson ex rel. Dowd v. City of Boston, makes clear that a public school system's inclusion of diversity as one of the guides to be used in considering whether to adopt a facially neutral plan does not by itself trigger strict scrutiny. See 375 F.3d at 85–87 (holding that strict scrutiny did not apply to attendance plan adopted based on desire to promote student choice, equitable access to resources for all students, and racial diversity). In Anderson, we expressly held that "the mere invocation of racial diversity as a goal is insufficient to subject [a facially neutral school selection plan] to strict scrutiny."

.

Boston Parent I,

. Our view has not changed. There

is nothing constitutionally impermissible about a school district

including racial diversity as a consideration and goal in the

- 30 - enactment of a facially neutral plan. To hold otherwise would

"mean that that any attempt to use neutral criteria to enhance

diversity . . . would be subject to strict scrutiny." Boston

Parent I,

.

"The entire point of the Equal Protection Clause is that

treating someone differently because of their skin color is not

like treating them differently because they are from a city or

from a suburb . . . ." Students for Fair Admissions, 600 U.S. at

220. So too here, treating students differently based on the zip

codes in which they reside was not like treating them differently

because of their skin color.

C.

Because we find that the Plan is not subject to strict

scrutiny, we would normally proceed to consider its

constitutionality under rational basis review. But the Coalition,

for good reason, does not argue that the Plan fails rational basis

review. So we deem any such claim waived.

IV.

Finally, the Coalition appeals the district court's

denial of its motion under Federal Rule of Civil Procedure 60(b),

which allows for relief from a final judgment in "exceptional

circumstances . . . favoring extraordinary relief." See Karak v.

Bursaw Oil Corp.,

(1st Cir. 2002). We review the

district court's denial of the Coalition's Rule 60(b) motion for

- 31 - abuse of discretion. Fisher v. Kadant, Inc.,

(1st Cir. 2009).

Pursuant to Rule 60(b), a "court may relieve a

party . . . from a final judgment, order, or proceeding" based on,

inter alia, "newly discovered evidence that, with reasonable

diligence, could not have been discovered in time." Fed. R. Civ.

P. 60(b)(2). The newly discovered evidence to which the Coalition

pointed was the text messages, discussed above, between Oliver-

Dávila and Rivera, particularly their agreement that they were

"[s]ick of westie whites."

"Under this rule, a party moving for relief . . . must

persuade the district court that: (1) the evidence has been

discovered since the trial; (2) the evidence could not by due

diligence have been discovered earlier by the movant; (3) the

evidence is not merely cumulative or impeaching; and (4) the

evidence is of such a nature that it would probably change the

result were a new trial to be granted." González–Piña v.

Rodríguez,

(1st Cir. 2005) (internal quotation

and citation omitted). Here, the district court concluded, among

other things, that the Coalition failed to meet the second and

fourth requirements. See Bos. Parent Coal.,

, at

*15–16.

As to the second requirement, the district court found

that the Coalition failed to show that "the evidence could not by

- 32 - due diligence have been discovered earlier." González–Piña,

. The district court -- buttressed by its experience

closely supervising this litigation and the parties' arguments

along the way -- reasonably determined that the Coalition made a

deliberate decision to forgo discovery, despite its apparent

suspicion that the two School Committee members harbored racial

animus, and even discouraged further development of the record at

trial. Bos. Parent Coal.,

, at *15. The Coalition

purportedly did so because it was, and remains, adamant that it

did not need to make a showing of racial animus to prevail. See

Additionally, the district court found that the School

Committee's failure to disclose the text messages in its response

to various third parties' public records requests did not

constitute the kind of misconduct -- such as that occurring within

the judicially imposed discovery process -- that warrants

Rule 60(b) relief. See id. at *14. We see no abuse of discretion

in any of these findings.

As to the fourth requirement, the district court found

that the text-message evidence was not "of such a nature that it

would probably change the result were a new trial to be granted,"

González–Piña,

, principally on the grounds that

the evidence did not rectify the Coalition's failure to make a

proper showing of the Plan's disparate impact. See Bos. Parent

Coal.,

, at *15–16. The district court did not

- 33 - abuse its discretion in reaching this conclusion. More evidence

of intent does not change the result of this case, given that our

analysis assumes that the Plan was chosen precisely to alter racial

demographics. We recognize that the text messages evince animus

toward those White parents who opposed the Plan. But the district

court supportably found as fact that the added element of animus

played no causal role that was not fully and sufficiently played

by the motive of reducing the under-representation of Black and

Latinx students. Id. at *15. In the district court's words, what

drove the Plan's selection was the expected "increase in Black and

Latinx students." Id. (citing Personnel Adm'r of Mass. v. Feeney,

(1979)) (distinguishing "action taken because of

animus" from action taken "in spite of [its] necessary effect on

a group") (emphasis in original). So, we need not decide what to

make of a case in which a school district took action to reduce a

numerically over-represented group's share of admissions because

of animus toward that group.

Consequently, we find that the district court did not

abuse its discretion in denying the Coalition relief under

Rule 60(b).

V.

For the foregoing reasons, we affirm the district

court's denial of the Coalition's motion under Rule 60(b), and its

judgment rejecting the Coalition's challenges to the Plan.

- 34 -