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Boston lawyer forgot to tell judge about missing evidence in exam school challenge, new court documents say

Boston Latin Academy.John Tlumacki

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Lawyers for the City of Boston blamed memory lapses and poor communication for their failure to alert a federal court judge to missing evidence in a closely watched court challenge to a previous exam school admissions policy, new court documents show.

The evidence involves an exchange of racially charged text messages between then-Boston School Committee members Alexandra Oliver-Dávila and Lorna Rivera in 2020. In the messages, they complained about “white racists” and white West Roxbury residents they predicted would oppose an admission plan to use student ZIP codes as a way of boosting racial and socioeconomic diversity at the city’s three exam schools.


The explanation for the missing text messages was included in a memorandum filed Monday night. Last month, a federal court judge said he believed he had been “misled” by the omission of the text messages from the court record.

“They were not in the record because, months before the lawsuit was filed, lawyers at the [c]ity made a judgment that they were not ‘public records,’ required to be released under the public records laws,” according to a memorandum filed by attorneys Kay H. Hodge and John Simon, who represented the School Committee in the lawsuit.

The issue is not expected to affect the new exam school admissions policy, which was changed and adopted last month. But parents challenging the former temporary policy are requesting that students who would have likely gotten into the exam schools under the old system be offered admission now or at a later date.

The court filings also offer a rare glimpse into the inner workings of City Hall’s legal office. Four lawyers, including the city’s public records officer, determined Rivera and Oliver-Dávila’s text messages “were personal in nature” and “not made in the member’s public capacity.”


They excluded them when the Globe requested e-mails and texts between School Committee members during the meeting when they adopted the temporary exam school policy, and alerted the Globe that some messages were omitted.

Months later, Catherine Lizotte, the legal advisor for Boston Public Schools, sent the same transcript of text messages when a private citizen made a similar records request. But this time, Lizotte forgot to tell the requester that some of the messages had been withheld because they were considered personal.

When the Boston Parent Coalition for Academic Excellence brought its lawsuit in February and included the text transcript as part of the court record, Lizotte said she “did not remember” that she had given the same transcript to the private citizen days earlier and didn’t realize this person was associated with the legal action, according to court documents. Lizotte said she also did not remember that portions of the text messages had been omitted from the transcript provided to the Globe.

“Because Attorney Lizotte did not recall making the redactions, it did not occur to her that the redactions were relevant to the process of compiling documents ... or to the litigation itself,” the motion stated. “Her failure to recall the redactions made more than four months earlier is regrettable, but also innocent and understandable...

“There was no nefarious conduct or intent on the part of city attorneys to deprive the plaintiff or the court of redacted messages or of any other information.”


The parents challenging Boston’s exam school ZIP code admissions policy contend that the omitted text messages reveal “an environment in which racial animus was the norm” and was a factor in the School Committee’s decision to approve the plan. This argument, along with the lawyers’ failure to mention the omitted text messages, led Federal District Court Judge William Young to take the rare step of withdrawing his previous opinion upholding the district’s ZIP code plan.

City officials argue that the parent coalition’s challenge is moot since the city has since ended the temporary ZIP code policy for assigning students to the exam schools. The coalition contends the court could still address harms caused by the policy by crafting “a remedy that would allow the named students and many other wrongfully excluded students, to attend exam schools.” (The plaintiffs’ brief mentions five unnamed Chinatown and West Roxbury students who did not gain admission to exam schools but might have under a citywide competition.)

In 2020, the School Committee temporarily suspended the admissions test and came up with a system that allocated 80 percent of seats to top applicants from each ZIP code. The number of seats available to each ZIP code was based on the proportion of school-age students living there.

During the marathon October 2020 meeting when the School Committee adopted the ZIP code assignment policy, then-Chairman Michael Loconto was caught on a hot mic appearing to make fun of the Asian names of people signed up to testify. The Globe requested the text messages and e-mails exchanged among the members during that meeting.


Last month, the Boston School Committee adopted a new admissions system that considers the socioeconomic conditions of neighborhoods in judging applicants, the first major permanent policy change in more than two decades.

Bianca Vázquez Toness can be reached at bianca.toness@globe.com. Follow her on Twitter at @biancavtoness.