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In re Boston’s Children First

Citation. 244 F.3d 164, 2001 U.S. App. 11742
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Brief Fact Summary.

The plaintiffs in a class action suit sought the recusal of the
presiding district judge after the judge made statements to a local newspaper implying
that the plaintiff’ claim was less than meritorious.

Synopsis of Rule of Law.

Regardless of a judge’s actual impartiality, where a reasonable
person might perceive bias to exist, the judge is required to recuse herself.


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


Whether a sitting district court judge should have recused herself after
commenting publicly on a pending matter.


Yes. The Court of Appeals for the First Circuit held that it was an abuse of
discretion for the judge not to recuse herself based on an appearance of impartiality and
thus granted the writ of mandamus. Any justice, judge or magistrate of the United States
must disqualify himself in any proceeding in which his impartiality might reasonably be


In requiring Judge Gertner to recuse herself, the circuit court stated that
although such a grant in no way indicates a finding of actual bias or prejudice, nor does it
suggest that the trial judge abdicated any of her ethical responsibilities, her comments
could have been construed as implying that Plaintiffs’ claims were less than meritorious.

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