In re Boston’s Children First

Facts

The Plaintiffs, Boston Children’s First (Plaintiffs), filed suit challenging Boston’s elementary school student assignment process on June 21, 1999, claiming that they had been deprived of preferred school assignments based on their race, in violation of state and federal law. The case was assigned to District Judge Nancy Gertner. On May 19, 2000, the district court addressed a motion to dismiss in which the Defendant, school system (Defendant), argued that Plaintiffs lacked standing to sue because they would not have received their preferred school assignments anyway, even if racial preferences were not used in the assignment formula. The district court found that five of the ten individual Plaintiffs had not applied to change schools for the 1999-2000 school year, and thus lacked standing to seek injunctive relief. Following difficulties over class certification issues, the Boston Herald (Herald) newspaper ran several articles regarding the suit. In a July 28, 2000 letter to the Herald (with copies sent to both parties), Judge Gertner responded to what she viewed as inaccuracies in the July 26 article. On August 4, 2000, the Herald published a follow-up article, which, based on a telephone interview with Judge Gertner, quoted her as saying: “In the Mack case, there was no issue as to whether the plaintiffs were injured. It was absolutely clear every woman had a claim. This is a more complex case.” It is not entirely clear from the record whether Judge Gertner called the Herald reporter, or merely returned an outstanding phone call. Based on Judge Gertner’s comments as reported in the August 4 article, Plaintiffs then moved that the judge recuse herself because her “impartiality might reasonably be questioned.”