Judge withdraws opinion on exam-school admissions, saying he was misled by BPS on those 'Westie whites' text messages

A federal judge today withdrew his approval of the system BPS used to offer admission to the three exam schools, saying he was misled by a transcript of text messages by School Committee members that left out the "Westie whites" comments.

The ruling will not affect the bulk of admissions already offered for the exam schools for September, because the parents group had already said it would not fight those. US District Court Judge William Young did not grant the group's request to re-open the case entirely; the matter now goes to the US Court of Appeals for the First Circuit, which has the power to have him re-open the case.

During a hearing on the case today, Young also said that even if the case is re-opened, his decision today does not mean he might still find that the School Committee did nothing racially biased in approving an exam-free admissions policy, but he said he simply could not let an opinion stand that was not based on facts, in this case, an assertion by the city that an eight-page transcript of School Committee text messages was accurate, when it wasn't.

Young said this was the first time in 36 years on the bench that he's withdrawn an opinion, but said he had no choice. "I've been misled and I don't see how the opinion can stand," even if he was misled completely innocently, as BPS attorney Kay Hodge argued.

"Opinions are based on facts," he said. "Facts."

Young said he is willing to consider whether any of the attorneys on the city side - both in-house counsel and an outside law firm - should face any sanctions. He pointed to an argument by Hodge that in-house lawyers innocently excluded text messages like "I hate WR" and that they simply thought that was the same as excluding a text reading "I like Kit Kats."

"It's ludicrous, candidly, to equate the two," he said.

William Hurd, attorney for the Boston Parent Coalition for Academic Excellence Corp., said that while his group is not going to fight over the seats awarded at Boston Latin School, Boston Latin Academy and the John D. O'Bryant School in September, it might seek to have the courts order BPS to use a non-Zip-code based system to fill any seats that wind up unfilled after school starts. Longer term, he said, the group wants a permanent ban on the use of Zip codes for exam-school admissions. And, as long as the courts are looking at his request to re-open the whole case, there's also the matter of monetary damages.

After Young withdrew his prior approval, Hodge addressed Young: "We are apologizing for any of those impacts and we will endeavor to do better."

At issue in the hearing was a transcript of text messages, released to the Globe and a Dorchester resident who turned out to be a member of the parent group, of phone text messages among School Committee members during the October, 2020 meeting at which they approved an admissions system for September.

Hodge told Young that three Boston city attorneys - Corporation Counsel Eugene O'Flaherty, assistant corporation counsel Henry Luthin and Shawn Williams, the city's expert on public-records requests - assembled screen shots of the texts, then redacted messages that they felt didn't involve officials business, which can be stricken under the state public-records law.

This is where Young's ire rose, when told that they felt messages like "I hate WR" during a meeting about school admissions were of a personal nature.

His judicial anger further rose when Hodge, hired in February to defend BPS in the suit acknowledged neither her nor any of the lawyers on her team knew about the exclusions, or even that there had been a public-records requests for the texts, until the parents group included the eight-page summary in its list of documents submitted to her and the court as a basis for Young's consideration of the case.

And when she stipulated that the transcript was "true and accurate," she did not know about the "Westie whites" omissions, she said, adding she and her team were up until midnight on the Saturday before a court hearing going through the thousands of pages of documents in the case.

But "true and accurate," doesn't mean BPS was saying the transcript was "complete," she said.

Young then asked her what she did after somebody leaked the omitted texts to the Globe, which, of course, promptly published them. She said even then, she didn't know about them, because she was busy on other matters and hadn't seen the Globe. But she acknowledged that once she did learn about the matter, she did not bring them to Young's attention.

The argument about completeness "falls on deaf ears," Young said.

Young asked Hodge if it had occurred to here that, no matter how innocently, "the court had been mislead here?"

"It didn't occur to you to bring the matter to the court's attention?" he asked. She acknowledged it did not.

She continued, however, that during a legal proceeding, what the facts are determined to be changes from the early stages through the end result, and that this was, ultimately, an example of that, and one that shouldn't affect the ultimate ruling.

Young jumped on that. He noted that, in the interests of not screwing with the lives of hundreds of students, whose futures might hinge in part on learning what high school they're going to, he had gotten both sides to dramatically speed up the whole judicial process, so that he could rule on the case before it was too late to send out acceptance messages for the fall.

And while the text messages may not be the heart of the case, they were not simply peripheral - he noted that the two School Committee members who exchanged them had resigned after the Globe story.

"There are sentences in this opinion that had I known [about the particular texts], I wouldn't have written it this way," he said.