Withholding Evidence is Fraud On the Court Claims Federal Judge Who Withdraws Opinion

Federal district court judge withdraws opinion in exam school case, saying ‘I was misled’

JUL 9, 2021 | REPUBLISHED BY LIT: JUL 12, 2021

In a surprise move, federal district court Judge William Young withdrew his opinion Friday in a Boston exam school admission case, because he said he believed the school system’s attorneys misled him by excluding racially charged text messages from the court record.

“Look, this is my opinion. My signature is on it. I was misled,”

he said during a hearing on Friday, noting it was the first time in his 36-year career as a judicial officer that he withdrew an opinion.

“This is extraordinary for a court to withdraw its opinion because the facts upon which it was based are not accurate.”

Withdrawing the opinion in no way changes the fate of hundreds of students who were accepted to the exam schools this fall under a temporary admission plan that is at the center of the court case. Young upheld the legality of that plan in April and said the judgment stands as he decides whether to formally reopen the case.

He suggested any change in admission decisions would be too disruptive, given the new school year starts in two months, and because of that he questioned whether the plaintiffs would still have standing, suggesting their concerns may no longer be relevant. The plaintiffs had originally sought to block the temporary plan from being enacted.

Post Edited: A Motion for Sanctions Against Repetitive, Non-Conferring Attorneys Lands at the Fifth Circuit https://t.co/HK6gjgiElw

— LawsInTexas (@lawsintexasusa) July 9, 2021

But the city’s legal department and outside attorneys could face disciplinary actions if Young determines they misled the court or violated any other ethical standards. Young ordered the attorneys to file a detailed brief in 30 days explaining why the text messages were never submitted to the court and why no one from the city’s legal department notified the court about the text messages after they recently were leaked to the media.

 Judge in exam school case calls allegations of withholding text messages ‘potentially fraud on the Court’

Kay Hodge, an attorney for the city, repeatedly emphasized the omissions were innocent mistakes.

“I am wanting to be clear on the record that we are apologizing,” she said. “We will endeavor to do better.”

The court case has moved back into the spotlight as the School Committee is on a fast track to vote this month on permanently changing exam school admission criteria — a contentious debate that has pitted city neighborhoods against one another as the committee determines how to make access to the schools more equitable to applicants of all socioeconomic, geographic, and racial backgrounds. The School Committee is expected to vote next Wednesday.

The city’s attorneys were on shaky ground before the hearing even started. Young said in a brief order last week that the allegations they faced were profound and most serious, calling it “potentially fraud on the Court.”

A group of white and Asian parents known as the Boston Parent Coalition for Academic Excellence is seeking to reopen the case in light of the recently discovered text messages. They contend the text messages show that former School Committee vice chair Alexandra Oliver-Dávila and member Lorna Rivera were biased against white people.

So this happened today. https://t.co/OQcT6VVSTm #txlege #appellatetwitter https://t.co/Ldk6OWuG5a pic.twitter.com/ejGvusSb2j

— LawsInTexas (@lawsintexasusa) July 8, 2021

On the night the School Committee approved the temporary plan last October via Zoom, Oliver-Dávila and Rivera exchanged disparaging texts about white parents from West Roxbury. Among the excluded text messages, Oliver-Dávila texted to Rivera, “I hate WR” in reference to West Roxbury and Rivera replied, “Sick of Westie whites.” Oliver-Dávila shot back: “Me too. I really feel like saying that.”

The admission plan the committee approved temporarily suspended the entrance exam and instead admitted students based on grades and allocated most seats at Boston Latin School, Boston Latin Academy, and the O’Bryant School of Math and Science by the ZIP codes in which students live. The change led to a reduction of white and Asian applicants getting in.

The group is seeking to permanently ban the school system from using ZIP codes in allocating seats. The group also asked the court on Thursday in a new motion to issue an injunction that would require the school system to fill any empty seat at the exam schools this fall “under a single citywide competition.” Empty seats could arise if more applicants turn down admission offers than expected.

The outcome of the court case is not expected to affect the permanent plan, which is distinctively different than the temporary plan. Instead of allocating most seats by ZIP codes, the permanent plan would group applicants from similar census tracts together and allocate seats among those groupings.

Like the temporary plan, 20 percent of the seats first will be allocated to applicants citywide with the highest composite scores under the permanent plan, which for next year would use only students’ grades but would then add test scores back in the following year. The rest of the seats would be allocated based on geographic considerations, albeit census tracts instead of ZIP codes.

However, school officials announced at a public hearing on Wednesday they are considering another measure, which was originally gaining favor with a task force that developed the plan, to allocate all seats through the census tracts. The task force previously abandoned that measure under political pressure.

Post Edited: A Motion for Sanctions Against Repetitive, Non-Conferring Attorneys Lands at the Fifth Circuit https://t.co/HK6gjgiElw

— LawsInTexas (@lawsintexasusa) July 9, 2021

In waging their defense, city attorneys have stressed in a motion they filed earlier this week and in the Friday hearing that they never vouched that a transcript of text messages submitted to the court was a complete accounting of all such communications between School Committee members during the night the temporary plan was approved.

They only attested the information in the transcript was accurate.

The transcript was originally produced in response to a Globe public records request last October and officials removed text messages they deemed “personal in nature,” even though Oliver-Dávila and Rivera’s remarks were related to public testimony on the night of the vote.

But their explanation didn’t appear to pass muster with Young, who grilled Hodge about why the city’s legal team never told the court that other text messages existed, resulting in an inaccurate record.

“I thought I had the complete messages and telling me now that it wasn’t stipulated that it was complete falls on extremely deaf ears,”

he said, noting he gave considerable thought to the text messages that were provided in making his ruling.

“It’s very clear I wrestled with these text messages and they’re not some peripheral footnote in the opinion especially given the comments of then chairperson of the School Committee — comments that you in your oral arguments characterized as dumb,”

Young said referring to Michael Loconto, who was caught on a hot mic that night mocking the names of speakers with Asian-sounding names.

He also wanted to know why Hodge or other city attorneys didn’t notify the court about the leaked text messages after they became public, saying, “Did it occur to you that, perhaps innocently, that the court had been misled here?”

“No, I actually was unaware of the problem,” she said, noting she was behind on reading the Globe. “But when I did become aware of it, I did inquire with the city.”

Rivera and Oliver-Dávila apologized for their texts after they became public and resigned, explaining they had received many letters filled with racialized discourse opposing exam school admission changes in the days leading up to the vote. Oliver-Dávila also said the discussion brought back memories of being discriminated against as a child in West Roxbury. Loconto also resigned shortly after his comments and apologized.