United States Court of Appeals
                     For the First Circuit

No. 21-1303

     BOSTON PARENT COALITION FOR ACADEMIC EXCELLENCE CORP.,

                      Plaintiff, Appellant,

                               v.

  THE SCHOOL COMMITTEE OF THE CITY OF BOSTON; ALEXANDRA OLIVER-
   DAVILA; 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.


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

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


                             Before

                       Howard, Chief Judge,
              Thompson and Kayatta, Circuit Judges.


     Callan G. Stein, Mary Grace W. Metcalfe, William H. Hurd,
Christopher W. Carlson, Jr., and Troutman Pepper Hamilton Sanders
LLP on brief for appellant.
     Kay H. Hodge, John M. Simon, and Stoneman, Chandler & Miller
LLP on brief for appellees.
     Susan M. Finegan, Andrew N. Nathanson, Mathilda S. McGee-
Tubb, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Doreen
M. Rachal, Sidley Austin LLP, Lauren Sampson, Oren Sellstrom,
Janelle Dempsey, Lawyers for Civil Rights, Daniel Manning, and
Greater Boston Legal Services on brief for intervenors-appellees.



                         April 28, 2021
          KAYATTA, Circuit Judge.         Plaintiff, a corporation acting

on behalf of fourteen parents and children who reside in Boston,

alleges that a plan promulgated by the Boston Public Schools for

admitting students to Boston Latin School, Boston Latin Academy,

and John D. O'Bryant School of Mathematics and Science for the

2021–2022 school year violates the Equal Protection Clause of the

Fourteenth    Amendment       and   chapter 76,          section 5    of    the

Massachusetts General Laws.         After considering the agreed-upon

facts and the parties' arguments, the district court entered

judgment in defendants' favor.              Bos.   Parent Coal.      for Acad.

Excellence Corp. v. Sch. Comm. of Boston (Boston Parent Coalition),

--- F. Supp. 3d      ---,    Civil Action No. 21-10330-WGY, 

, at *17 (D. Mass. Apr. 15, 2021).           Plaintiff has appealed

the district court's judgment and moves in this court for an

injunction   preventing       the   implementation        of   the   2021-2022

admissions   plan   pending    resolution     of   the    appeal.     For   the

following reasons, we deny plaintiff's motion.

                                     I.

          A thorough summary of the facts appears in the district

court's opinion, which in turn relied on the parties' agreed-upon

statement of facts.         We provide the broad framework and then

address in our analysis those particular facts deemed significant

by the parties in their motion papers on appeal.




                                    - 3 -
           Known for the strength of their academic programs, the

three above-mentioned schools (what the parties call the "Exam

Schools") have fewer admission slots than there are Boston students

who wish to attend them; for the 2020-2021 school year, over 4,000

students applied for about 1,400 slots.            For the past twenty years

or so, they have selected students for admission based on the

students' grade point averages in English Language Arts and Math

courses, scores on a standardized admissions test, and their school

preferences.      Boston Parent Coalition, 

, at *3.

           The    onset     of    the   COVID-19   pandemic    threatened   the

schools' ability to conduct the admissions process as in recent

years, prompting the School Committee of the City of Boston, the

group responsible for managing the Boston Public Schools, to create

a Working Group charged with "[d]evelop[ing] and submit[ting] a

recommendation     to     the    Superintendent    [of   the    Boston   Public

Schools, Dr. Brenda Cassellius,] on revised exam school admissions

criteria for [the 2021-2022 school year]."

(first

and last alterations in original). After the Working Group studied

the issue, proposed a new plan, and modified that plan based on

feedback   from    School       Committee   members,   the    School   Committee

adopted the 2021-2022 Admissions Plan at a meeting on October 21,

2020.

           The Plan as adopted conditions a student's eligibility

to compete for admission to the Exam Schools on three criteria:


                                        - 4 -
(1) residence   in    one    of   Boston's       twenty-nine     zip   codes   (or

inclusion in a special zip code created for students who are

homeless or in the custody of the Department of Children and

Families); (2) maintenance of a B average or better in English

Language Arts and Math during the fall and winter of the 2019-2020

school year or receipt of a "Meets Expectations" or "Exceeds

Expectations" score in English Language Arts and Math on the Spring

2019   Massachusetts      Comprehensive         Assessment    System   test;   and

(3) performance at grade level under the Massachusetts Curriculum

standards.    Eligible students seeking admission must submit a

ranked list of school preferences.

           The Plan's admissions process plays out in two phases.

In phase one, all eligible students are ranked city-wide by grade

point average accumulated in English Language Arts and Math courses

during the fall and winter of the 2019-2020 school year.                       The

highest-ranking      students     are     assigned    to     their   first-choice

schools until twenty percent of each school's seats are full.                   If

twenty   percent     of     the   seats     at    a   high-ranking      student's

first-choice school are already full, that student's application

is considered during the process's second phase.

           Phase two begins with the allotment of the remaining

eighty percent of seats among the various zip codes based on the

proportion of Boston schoolchildren residing in each zip code.

Then, the remaining eligible students are ranked by grade point


                                        - 5 -
average within their zip code rather than city-wide as in phase

one.   Phase two assigns each zip code's allotted seats over the

course of ten rounds.    Each round fills ten percent of the seats

remaining after phase one.    In the first round, starting with the

zip code that has the lowest median household income with children

under age eighteen (hereinafter "family income"), the highest-

ranking applicants in that zip code receive seats at their first-

choice schools until ten percent of the zip code's allotted seats

are filled.    The first round continues by filling ten percent of

the seats allotted to the zip code with the next-lowest family

income and the round ends with the assignment of ten percent of

the seats allotted to the zip code with the highest family income.

In each round, if an applicant's first-choice school is full, that

applicant gets an open seat at his or her next-choice school, if

one is available.    After this process cycles through nine more

rounds, the Exam Schools are fully enrolled.

          The Plan opened applications for admissions for the Exam

Schools   on   November 23,   2020,     and   closed   applications   on

January 15, 2021.     It anticipated invitations being issued to

successful applicants in March 2021, a date subsequently pushed

back, we are told, to no later than the end of this week.

          Because the invitations have not yet issued, neither

party is in a position to say with conviction what the demographic

results of the admissions process will be.         The Working Group,


                                - 6 -
however, prepared a projection based on a non-final version of the

Plan that was used in public meetings.       The projection estimates

that White students, who constitute 16 percent of the city's

school-age population, will receive 32 percent of the invitations

to the three schools; Asian students, who constitute 7 percent of

the   school-age   population,   will    receive   16 percent   of   the

invitations; Black students, who constitute 35 percent of the

school-age population, will receive 22 percent of the invitations;

and Latinx students, who constitute 36 percent of the school-age

population, will receive 24 percent of invitations.1

          At this point the careful reader might well assume that

the plaintiff represents Black and Latinx students, who, as a

group, are projected to receive many fewer admissions invitations

than one might expect would result under, for example, a lottery

or other random method.   In fact, plaintiff sues on behalf of White

and Asian students who prefer an admissions procedure (e.g., use

of GPA only) that would result in even more invitations going to

White and Asian students, with correspondingly fewer invitations

to Black and Latinx students.2


      1 To track the record compiled below, we follow the parties
in using the terms White, Black, Asian, and Latinx, as well as the
term Multi-Race/Other to refer to the group of students projected
to receive the remainder of the invitations.
      2 Plaintiff asserts that sixty-five more White and Asian
students would be admitted under its preferred selection
procedure, using GPA only.


                                 - 7 -
           Suing   the   School      Committee,   its    members,     and   the

Superintendent of the Boston Public Schools, plaintiff alleges

that the Plan, and its use of zip codes ranked in reverse order by

family   income,   violates    the     Equal   Protection    Clause    of   the

Fourteenth    Amendment       and     chapter 76,       section 5     of    the

Massachusetts General Laws because defendants intended for the

Plan to discriminate against White and Asian students.                  Boston

Parent Coalition, 

, at *1.           Plaintiff's operative

complaint seeks injunctive relief barring the defendants from

implementing the Plan, using zip codes as a factor in any future

admissions decisions, or making use of race or ethnicity in future

admissions decisions.

           Upon receipt of the parties' Joint Agreed Statement of

Facts, the district court advanced the case to a trial on the

merits, consolidated with a hearing on the plaintiff's motion for

a preliminary injunction.

Civ. P. 65(a)).

Treating the Joint Agreed Statement as containing the entirety of

plaintiff's proffered evidence, the court made findings of fact,

stated its conclusions of law, and entered final judgment against

plaintiff under Federal Rules of Civil Procedure 52(a) and 58.

The court managed to do all of this, and produce a detailed and

thoughtful forty-eight-page opinion, in less than two months.

Plaintiff promptly appealed and moved pursuant to Federal Rule of




                                     - 8 -
Civil   Procedure 62(d)         for    an     order     enjoining    defendants     from

implementing the Plan during the pendency of this appeal.

                                             II.

           Before turning to plaintiff's request for injunctive

relief,    we    must    answer        a     preliminary     procedural       question.

Ordinarily, a litigant must seek an injunction pending appeal first

in the district court before asking a court of appeals to issue

such an injunction.       Fed. R. App. P. 8(a)(1)(C).                This requirement

may be overlooked when the party seeking relief "show[s] that

moving first in the district court would be impracticable."                         Fed.

R. App. P. 8(a)(2)(A)(i).              Here, plaintiff argues that it would

have been impracticable to seek injunctive relief in the district

court   before    moving    in        this    court     because     the     issuance   of

admissions decisions under the Plan is imminent and the district

court's decision was "fundamentally inconsistent with the issuance

of an injunction."

           We disagree with plaintiff that the district court's

rejection of plaintiff's claims on the merits suffices to show

that    moving   first     in     the        district     court     would    have   been

impracticable.      See Washington Metro. Area Transit Comm'n v.

Holiday Tours, Inc., 

, 844-45 (D.C. Cir. 1977) ("Prior

recourse to the initial decisionmaker would hardly be required as

a general matter if it could properly grant interim relief only on

a prediction that it has rendered an erroneous decision."); Bayless


                                           - 9 -
v. Martine, 

, 879 n.4 (5th Cir. 1970) ("It does not

follow from the refusal to grant a preliminary injunction pending

a trial in the court below that the district court would refuse

injunctive relief pending an appeal.").

             Nevertheless, plaintiff also contends that the action

sought to be enjoined is so imminent that insufficient time would

remain to seek relief on appeal if plaintiff -- or this court --

gave the district court first crack at plaintiff's request for an

injunction pending completion of the appeal.                     To support this

contention,       plaintiff   points      to      statements      by   defendants

suggesting that invitations might go out by April 15, and more

recently indicating that they need to go out by the end of this

month.   Cf. Commonwealth v. Beshear, 

, 508 (6th Cir.

2020) (finding that "[m]oving first in the district court" to stay

preliminary injunctive relief that would have permitted activity

at   issue   to   occur   within   a    few     days   "would . . .    have   been

impracticable"); Gonzalez ex rel. Gonzalez v. Reno, No. 00-11424-

D, 

, at *1 n.4 (11th Cir. Apr. 19, 2000) (finding

that "Plaintiff has sufficiently shown that it would have been

impracticable to move first in the district court" in part because

of "the time-sensitive nature of the proceedings").

             As we will explain in Part V of this opinion, plaintiff

itself   bears     considerable        responsibility      for    creating    this

exigency. It nevertheless seems best to consider the ramifications


                                       - 10 -
of that responsibility in weighing the request for injunctive

relief rather than in deciding whether to entertain the request.

We therefore agree with plaintiff that the tight timeframe present

here renders prior recourse to the district court sufficiently

impracticable, albeit just barely so, to allow plaintiff to proceed

with its motion in this court.

                                       III.

           In reviewing a motion to stay a judgment pending appeal,

we   consider    the    following    factors:      "(1) [W]hether     the   stay

applicant has made a strong showing that [it] is likely to succeed

on the merits; (2) whether the applicant will be irreparably

injured absent a stay; (3) whether issuance of the stay will

substantially         injure   the   other     parties   interested    in   the

proceeding; and (4) where the public interest lies."                   Nken v.

Holder, 

, 434 (2009) (quoting Hilton v. Braunskill,

, 776 (1987)).           The first two factors "are the most

critical."

enough that the chance of success on

the merits be better than negligible. . . .              By the same token,

simply showing some possibility of irreparable injury fails to

satisfy the second factor."

(citations and internal

quotation marks omitted).

           When considering a request for injunctive relief pending

appeal, we consider the same factors, but the bar is harder to

clear.    Respect Maine PAC v. McKee, 

, 996 (2010)


                                      - 11 -
(explaining that obtaining injunctive relief from an appellate

court   "'demands   a   significantly      higher   justification'    than   a

request for a stay" pending appeal (quoting Ohio Citizens for

Responsible Energy, Inc.      v. NRC, 

, 1313 (1986)

(Scalia, J., in chambers))).          This is so because an injunction

"does not simply suspend judicial alteration of the status quo but

grants judicial intervention that has been withheld by [a] lower

court[]."

479 U.S. at 1313 (Scalia,

J., in chambers)).

            The trial court's findings of fact for the most part

track the Joint Agreed Statement of Facts, see Boston Parent

Coalition, 

, at *2, and are therefore treated by

the parties as largely uncontroversial.             Nevertheless, "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.'"    Anderson ex rel. Dowd v. City of Boston, 

,

80 (1st Cir. 2004) (alteration in original) (emphasis added)

(quoting Wessmann v. Gittens, 

, 795 (1st Cir. 1998)).

"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.

12 -
                                   IV.

            As is often the case in equal protection litigation, the

district court's judgment largely turned on the degree of scrutiny

brought to bear on the challenged governmental action. For reasons

it carefully explained, the district court concluded that rational

basis review, rather than strict scrutiny, applied.         Boston Parent

Coalition, 

, at *10–16.         Plaintiff trains its focus

on that conclusion in claiming that it is likely to prevail on

appeal.

            To begin, the district court found that the admissions

criteria employed under the Plan (zip codes rank-ordered by family

income,     grade   point   average,     and   school   preference)     "are

completely race neutral" on their face.

  Plaintiff

does not challenge this conclusion in its submission to this court.

Absent a showing of discriminatory purpose, we review an equal

protection challenge to race-neutral selection criteria for a

rational basis only.        

.       And plaintiff

tenders no argument that its claim can prevail under rational basis

review.

            Plaintiff must therefore argue that notwithstanding the

exclusive     use    of     race-neutral       admissions   criteria,      a

discriminatory purpose motivated the Plan's adoption, requiring

the application of strict scrutiny in assessing the vulnerability

of the Plan to plaintiff's equal protection challenge.                   See


                                  - 13 -
Washington v. Davis, 

, 241 (1976) (placing the burden

on the plaintiff to establish a "prima facie case of discriminatory

purpose").      In    general,      a    plaintiff       may     establish    that    a

discriminatory purpose motivated a facially neutral governmental

action -- and thus that strict scrutiny of that action is warranted

-- in two ways.      See 

–83.               The first is to

show that "a clear pattern, unexplainable on grounds other than

race, emerges from the effect of the state action."                          Vill. of

Arlington Heights v. Metro. Hous. Dev. Corp., 

, 266

(1977).        Plaintiff        makes    no   attempt       to     prove     unlawful

discriminatory purpose in this manner.                 Rather, plaintiff urges us

to follow a second approach described in Arlington Heights, calling

for " a sensitive inquiry into such circumstantial and direct

evidence of intent as may be 

.      Factors

bearing   on   discriminatory       intent       may    include    "the    degree    of

disproportionate      racial      effect,     if   any,     of    the   policy;     the

justification, or lack thereof, for any disproportionate racial

effect that may exist; and the legislative or administrative

historical background of the decision."                 

(citing Arlington 

–68).

           Looking at the degree of disproportionate racial effect

resulting from the challenged practice is doubly problematic for

plaintiff.      First,     as    compared     to   a     random    distribution      of

invitations, the Plan has no adverse disparate impact on White and


                                        - 14 -
Asian students.      Rather, plaintiff is able to generate a supposed

adverse impact principally by comparing the projected admissions

under the Plan to prior admissions under the predecessor plan.

Alternatively, plaintiff compares projections under the Plan to

projections of admissions based only on GPA.                  Either comparator

does produce even higher percentages of White and Asian students

than does the Plan.        But plaintiff 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.      Cf. Jones v. City of Boston, 

, 47

(1st Cir. 2014) (explaining that Title VII plaintiffs seeking to

prove disparate impact must show that a policy produced results

"that are not randomly distributed by race").

           Second, even as to its preferred comparators, plaintiff

offers no evidence establishing that the numerical decrease in the

overrepresentation     of    Whites       and    Asians   under   the    Plan   is

statistically significant.          A party claiming a disparate impact

generally does not even get to first base without such evidence.

Cf.

(discussing evidence of statistical

significance in evaluating a Title VII disparate impact claim).

           Whether     either      or    both    of   these    weaknesses    doom

plaintiff's appeal on the merits we need not decide.                  Rather, for

present   purposes    we    need   only     observe   that    these   weaknesses

certainly cut against finding that the degree of disproportionate


                                        - 15 -
effect contributes to plaintiff's likelihood of success on the

merits.

            Having thus forgone any serious engagement with how to

analyze the implications of the numerical data, plaintiff points

to   the    district   court's     finding      that   defendants       employed

"socioeconomic, racial, and geographic diversity as interests to

help guide" the Plan's development.           Boston Parent Coalition, 

, at *14.      Plaintiff argues that this finding -- that

one of the guides informing the Plan's development was a preference

for racial diversity -- categorically mandates strict scrutiny.

But our 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.          

–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."

            Plaintiff relies on our opinion in Wessmann v. Gittens,

which predated Anderson, to argue that the Plan is subject to

strict scrutiny because it "induces schools to grant preferences


                                   - 16 -
based on race and 

.      In Wessmann,

though, the plan at issue was not at all race-neutral on its face.

Rather, that plan explicitly used race as an admission selection

criterion:    "[D]uring the selection of the second half of each

incoming class . . . the [plan] relies on race and ethnicity, and

nothing else, to select a subset of entrants."

   all   selection    criteria    are   indisputably    facially

neutral.

            Moving on from its assault on the defendants' admitted

aim   of   enhancing   three   forms   --   socioeconomic,   racial,   and

geographic -- of diversity, plaintiff presses its major point:

There is evidence that some of the persons involved in developing

the Plan sought to achieve racial balancing, rather than racial

diversity.

            Plaintiff points to the Working Group's "Recommendation

of Exam Schools Admissions Criteria for SY21-22."                Under the

heading "Equity Impact," the Recommendation notes two "Desired

Outcomes":

            ● Ensure that students will be enrolled
            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


                                  - 17 -
           diversity of all students (K-12) in the city
           of Boston.

In crafting its recommendation and assessing the Plan's "Equity

Impact," the Group consulted the Boston Public Schools' Racial

Equity Planning Tool, which points to "opportunity gaps . . . for

Black and Latinx communities in Boston Public Schools," and in

that context contains a statement calling for "a hard pivot away

from a core value of equality -- everyone receives the same -- to

equity: those with the highest needs are prioritized."

           We    find     these   statements    to     be    significantly    less

telling   than    plaintiff       suggests.       To        begin,   the    Group's

Recommendation simply does not claim as its aim the balancing of

racial demographics in the Exam Schools so that they equal the

numeric demographics of the city or any other specified proportion.

Rather,   the    stated    aim    is   to   "better    reflect[]"     the   city's

"diversity" in the three stated respects. Similarly, the resulting

decision to use neutral criteria that take into consideration those

"opportunity gaps" is hardly an expression of racial bias. Indeed,

equity was one of the principal goals of the plan we reviewed for

a rational basis in Anderson.           

.

           In arguing that the Plan's legislative history reveals

its discriminatory purpose, plaintiff also stresses that three

School Committee members made statements reflecting a goal of

achieving for each racial group a percentage share of admissions



                                       - 18 -
comparable to that group's percentage of Boston's population. Such

a Plan might have been the equivalent of a quota, meaning that at

some point in the admissions process some students with a given

GPA, but not others with the same GPA, would be denied admission

because of their race.          But the Plan poses no such scenario.            At

the margins of GPA scores, students may be denied admission because

of the family income in their zip code.                But no student's race

will   be      the   reason   for   admission    or   rejection.       While   the

defendants clearly viewed increasing geographic, socioeconomic,

and racial diversity as goals, the district court observed that

the Plan ultimately employed (in addition to GPA and preference)

only geography and family income -- not race -- as selection

factors.

               [T]he Plan principally anchors itself to
               geographic diversity by equally apportioning
               seats to the City's zip codes according to the
               criterion of the zip code's percentage of the
               City’s   school-age   children.     The   Plan
               similarly anchors itself to socioeconomic
               diversity by ordering the zip codes within
               each round by their median family income. The
               Plan is devoid, however, of any anchor to
               race.

Boston    Parent      Coalition,    

,   at   *13    (citations

omitted).        In rejecting plaintiff's argument that the chosen

criteria masked a discriminatory purpose, the district court found

that     the     Plan's   criteria     genuinely      reflected       the   School

Committee's priorities:



                                      - 19 -
             The School Committee’s goal of a more racially
             representative student body, although more
             often   discussed   and  analyzed,   did   not
             commandeer   the   Plan,   and  it   in   fact
             necessarily took a back seat to the Plan’s
             other goals, which the Plan more aptly
             achieved.   Consequently, any effect on the
             racial diversity of the Exam Schools is merely
             derivative of the Plan’s effect on geographic
             and socioeconomic diversity -- not the
             reverse.

likely error in the district court's conclusion

that a discriminatory purpose did not motivate the Plan's adoption.

The   fact   that   public    school    officials    are   well   aware   that

race-neutral selection criteria -- such as zip code and family

income -- are correlated with race and that their application would

likely promote diversity does not automatically require strict

scrutiny of a school system's decision to apply those neutral

criteria.

             Plaintiff's     argument   to    the   contrary   contorts    the

Supreme Court's opinion in Arlington Heights.              In that case, the

Court rejected an equal protection challenge to a race-neutral

refusal to rezone that caused an impact on Black residents but

concerning which there was no evidence of any discriminatory

–71.            From that holding -- that a

successful challenge to disparate results of applying race-neutral

rules requires proof that a racially discriminatory purpose was a

factor motivating the adoption of those rules, accord Washington

v. Seattle Sch. Dist. No. 1, 

, 484–85 (1982) --


                                   - 20 -
plaintiff infers a different rule nowhere expressed in the Court's

opinion.   Under plaintiff's purported "rule," a selection process

based solely on facially neutral criteria that results in an

increase in the percentage representation of an underrepresented

group is subject to strict scrutiny if those designing the program

sought to achieve that result.     Such a rule would pretty much mean

that any attempt to use neutral criteria to enhance diversity --

not just measures aimed at achieving a particular racial balance

-- would be subject to strict scrutiny.       And that is just what

plaintiff says.

           The pertinent case law says otherwise.            As we have

already noted, our own precedent applying Arlington Heights does

not subject to strict scrutiny a race-neutral attendance plan

implemented to promote diversity as one of several ends.            See

.       The most on-point decision from the

Supreme Court since our decision in Anderson is Parents Involved

in Community Schools v. Seattle School District No. 1, 

(2007).    In both their filings in the district court and their

motion papers on appeal, the parties treat Justice Kennedy's

concurring opinion in Parents Involved as controlling.          Not all

courts have done the same.     Compare Spurlock v. Fox, 

,

395 (6th Cir. 2013) (referring to "Justice Kennedy's controlling

concurrence"    in   Parents   Involved),   with   Christa    McAuliffe

Intermediate Sch. PTO, Inc. v. de Blasio, 

, 282


                                 - 21 -
n.25     (S.D.N.Y.)         (collecting    cases     concluding        that   Justice

Kennedy's opinion controls but reaching the opposite conclusion),

aff'd, 

(2d Cir. 2019), and Doe ex rel. Doe v. Lower

Merion Sch. Dist., 

, 544 n.32 (3d Cir. 2011) (stating

that    "Justice      Kennedy's     proposition      that     strict    scrutiny    is

'unlikely' to apply to race[-]conscious measures that do not lead

to treatment based on classification does not 'explain[] the

result' of [Parents Involved]"). Regardless of whether all aspects

of     his   opinion     are    binding,      Justice    Kennedy's       concurrence

reinforces, rather than undercuts, our reasoning and holding in

Anderson.       The concurrence explains that school districts may

pursue       diversity       without      engaging      in     individual     racial

classification         by     drawing     "attendance        zones     with   general

recognition      of    the     demographics    of    neighborhoods."          Parents

(Kennedy, J., concurring); see also Tex.

Dep't of Hous. & Cmty. Affs. v. Inclusive Communities Project,

Inc., 

, 545 (2015) ("While the automatic or pervasive

injection of race into public and private transactions covered by

the [Fair Housing Act] has special dangers, it is also true that

race may be considered in certain circumstances and in a proper

fashion." (citing Parents 

(Kennedy, J.,

concurring))).        Plaintiff attempts to distinguish Parents Involved

by pointing out that it did not concern "magnet schools."                          But

nothing in Justice Kennedy's opinion suggests that public magnet


                                        - 22 -
schools must be treated differently from public schools generally

when evaluating whether a school district has violated the Equal

Protection Clause.

            Since Parents Involved, other courts of appeals have

recognized that a school district's consideration of the effect of

a proposed plan on a school's racial makeup does not require strict

scrutiny of that plan in the same way that would be required if

such a plan classified students based on race.           See 

("The [Supreme] Court has never held that strict scrutiny

should be applied to a school plan in which race is not a factor

merely because the decisionmakers were aware of or considered race

when adopting the policy."); 

–95; Lewis

v. Ascension Par. Sch. Bd., 

, 357–58 (5th Cir. 2015).

            To be sure, as is the case with most increases in

diversity, the     projected    numbers in this case       tended in the

direction of decreasing the numerical underrepresentation of a

racial group.     But there is no likely controlling reason why one

cannot   prefer   to    use   facially   neutral   and   otherwise   valid

admissions criteria that cause underrepresented races to be less

underrepresented.      The Supreme Court itself has pointed to the use

of fair, race-neutral selection criteria as a way to address

perceived underrepresentation of minorities in obtaining certain

benefits.   See City of Richmond v. J.A. Croson Co., 

,

509–10 (1989) (plurality opinion);

("If [minority


                                  - 23 -
business enterprises] disproportionately lack capital or cannot

meet   bonding   requirements,    a   race-neutral    program     of    city

financing for small firms would, a fortiori, lead to greater

minority participation.").

          This is not a situation where a racially discriminatory

purpose is the only plausible explanation for the Plan's adoption.

Far from it: The Plan employs only uncontrived criteria that could

easily be adopted in a world in which there were no races.               One

can readily see why a school system would prefer to curry city-

wide support for high-profile, pace-setting schools.            And one can

easily see why selective schools might favor students who achieve

academic success without the resources available to those who are

capable of paying for summer schooling, tutoring, and the like.

          Plaintiff   points     finally   to   comments   of   the    School

Committee chair who resigned after being heard making fun of the

names of several Asian Americans who spoke at a public meeting.

Boston Parent Coalition, 

, at *16.               But as the

district court concluded, none of the evidence to which plaintiff

points reasonably suggests that any other School Committee members

were supportive of the Chairperson's offensive statements.                We

therefore see no likely error in the district court's conclusion

that those sophomoric and hurtful comments by the Chairperson did

not establish racial animus as a factor motivating the School

Committee as a whole to adopt the Plan.

          Ultimately, the role of motive need be assessed within

the context of the means employed and the results achieved.   Here,

officials expressed a variety of concerns regarding how best to

award seats in the Exam Schools.      But the means they chose were

race-neutral and apt.   And the result on its face manifested no

starkly disparate impact concerning which plaintiff can complain.

To find such conduct subject to strict scrutiny would render any

school admissions criteria subject to strict scrutiny if anyone

involved in designing it happened to think that its effect in

reducing the underrepresentation of a group was a good effect.

Plaintiff cites no case so holding.

          For the foregoing reasons, plaintiff has not shown a

strong likelihood that it will prevail on the merits.    Failure to

satisfy this critical prerequisite for obtaining injunctive relief

pending appeal counsels strongly against granting an injunction

preventing defendants from implementing the Plan.

                               V.

          In assessing plaintiff's request for an injunction, we

consider also the balance of potential harms that confront us as

a result of plaintiff sitting on its collective hands.    Plaintiff

waited over four months after the Plan's long-anticipated adoption

before filing this lawsuit, even though all involved knew that

admissions invitations needed to go out to families early this

spring.   Notwithstanding the district court's Herculean efforts,


                             - 25 -
plaintiff has put itself in the position of now asking us on short

notice to enjoin implementation of the Plan, just days before

parents are to be informed of the admissions results.             The school

system would then be left with no plan at a time when it would

normally be assigning teachers and resources across the city based

on how attendance figures pan out at each school in the wake of

matriculation decisions at the Exam Schools.

            This court has previously withheld injunctive relief

that would have altered election procedures where a plaintiff filed

suit less than three months before ballots were to be cast.               See

Colón-Marrero v. Conty-Pérez, 

, 139 (1st Cir. 2012)

(noting that plaintiff filed complaint "less than two months

before" an election); Respect Maine PAC v. McKee, 

, 16

(1st Cir. 2010) (noting that plaintiffs sued just under three

months before election was to begin).             We do not lightly grant

emergency relief, especially where the "'emergency' is largely one

of [plaintiff's] own making" and the relief sought would interfere

with   processes    on    which   many   others   have   reasonably   relied.

Respect Maine 

.         These principles as applied in

election cases have force here, too.          See Benisek v. Lamone, 138

S.   Ct.   1942,   1944   (2018)   (per   curiam)   (explaining    that   the

requirement that a party seeking injunctive relief "must generally

show reasonable diligence" applies "in election law cases as

elsewhere").


                                    - 26 -
              Due   to     plaintiff's        delay,    plaintiff's       requested

injunctive relief threatens to injure the other interested parties

and the public.          Enjoining defendants from making Exam School

admissions decisions based on the Plan at this juncture would

unsettle important expectations and the plans of thousands of

families awaiting those decisions.               The public interest is best

served   by    permitting        defendants    to   finalize    and    communicate

admissions decisions based on the Plan, not by entering plaintiff's

proposed      injunction    and    throwing      the   Exam   School     admissions

process into chaos.

                                         VI.

              For   each    of    the   foregoing      two    reasons,    we   deny

plaintiff's motion for an injunction pending the completion of

this appeal.




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