On Monday, the Supreme Court denied certiorari in Boston Parent Coalition for Academic Excellence Corp.v. The School Committee for the City of Boston, a case that concerned the 2020–2022 admissions policy for Boston’s three selective public high schools. The policy, which aimed to reduce white and Asian enrollment in the name of “racial equity,” is yet another example of a school district engaging in racial balancing.
Boston Latin School (BLS), Boston Latin Academy (BLA), and John D. O’Bryant School of Mathematics and Science (O’Bryant) are selective public high schools that serve academically gifted students in the City of Boston. All are considered crown jewels of American public education and are consistently ranked among the nation’s top high schools by U.S. News & World Report. BLS, for example, is the oldest public school in America, counts among its alumni five signers of the Declaration of Independence, and offers 26 Advanced Placement (AP) courses. Many parents in Boston, particularly those who are Asian immigrants, view a child’s enrollment in BLS, BLA, or O’Bryant as a step toward the American Dream.
For years, the district based its admissions decisions on a student’s grades in English Language Arts (ELA) and math, as well as performance on an entrance exam similar to the SAT. District officials took the average of each applicant’s grades and assigned a value to that average before adding the applicant’s score on the entrance exam to create a “composite score.” Students with the top composite scores were awarded seats at BLS, BLA, or O’Bryant.
After 2020’s Black Lives Matter protests, the Boston School Committee (BSC) voted to overhaul the admissions process. Committee members were concerned that the racial makeup of the city’s selective public high schools did not match the racial makeup of Boston Public Schools students; black and Hispanic children represented 75 percent of district students but only 40 percent of BLS, BLA, and O’Bryant enrollees. One committee member, Lorna Rivera, insisted that the BSC “be explicit about racial equity” and “figure out again how we could increase those admissions rates, especially for Latinx and black students.” Another, Alexandra Oliver-Davila, stated that “there’s no excuse” for the selective schools’ failure to “reflect the District, which has a larger Latino and black African-American population.”
The new admissions policy for BLS, BLA, and O’Bryant eliminated the entrance exam and reserved only 20 percent of seats at each school to be filled on the basis of GPA alone. The remaining 80 percent of seats were allocated to each Boston zip code according to the percentage of school-age children that lived in that zip code. Students with the top GPAs in their zip codes were admitted to a selective public high school. Of all the admissions policies the BSC considered, this one projected “a clear gain for black and Hispanic students and a clear loss for Asian-American and white students,” according to a lawsuit filed against the school committee.
The district’s projection was accurate. For fall 2021, the share of white students at BLS, BLA, and O’Bryant fell by nine percentage points (from 33 percent to 24 percent), while the share of Asian-American students fell by five percentage points (from 21 percent to 16 percent). Gaining admission to these schools proved much harder if a student lived in a predominantly white and Asian neighborhood than if a student lived in a predominantly black and Hispanic neighborhood. Indeed, the average GPA (on a 12-point scale) of a child who won a seat at BLS, BLA, or O’Bryant from the former ranged between 10.32 and 11.56, while the average GPA of a child who won a seat from the latter ranged between 9.51 and 10.67.
Consequently, 14 families—eight Asian and six white—sued the school committee. These families, all members of the Boston Parent Coalition for Academic Excellence, had children who either intended to apply to the city’s selective public high schools or would have been admitted to BLS, BLA, or O’Bryant but for the change in admissions policy. One of the Asian students was rejected from all three schools despite having a GPA higher than the average of all admitted students.
The U.S. District Court for the District of Massachusetts and the First Circuit Court of Appeals concluded that BSC’s 2020 admissions policy was enacted, in large part, to balance racially the city’s selective public high schools. In spite of this finding, both courts held that the policy did not violate the Constitution’s Equal Protection Clause, claiming that, while the zip code quota was enacted with discriminatory intent, it did not have a disparate impact on Asian and white students, because these students are overrepresented among BLS, BLA, and O’Bryant enrollees. The Fourth Circuit Court of Appeals made the same argument months earlier, upholding an admissions policy for Thomas Jefferson High School for Science and Technology (TJ) in Alexandria, Virginia, that successfully reduced Asian enrollment at the magnet school. Judge Allison Rushing, who dissented from the majority in that case, warned that under such an understanding of disparate impact law, “governments are free to pass facially neutral laws explicitly motivated by racial discrimination, as long as the law’s negative effect on the targeted racial group pushes it no lower than other racial groups.”
In April, the Supreme Court denied certiorari in Coalition for TJ v. Fairfax County School Board, just as it did in Boston Parent Coalition on Monday. While the justices gave no explanation for their refusal to hear the TJ case, Justice Neil Gorsuch suggested that several believed the Boston case was moot, given that the city recently rescinded the zip-code quota.
Justice Samuel Alito disagreed. In a dissent (joined by Justice Clarence Thomas) to the majority’s denial of certiorari, he argued that the case was still ripe because the district court could order BLS, BLA, and O’Bryant to admit those white and Asian students who had been rejected under the zip-code quota but would have won seats under the old citywide competition. More importantly, Alito noted that in failing to grant certiorari in the TJ and Boston cases the majority allowed the First and Fourth Circuits’ “indefensible” reinterpretation of the Constitution’s Equal Protection Clause to stand. Under this reinterpretation, “a facially race-neutral policy caused no disparate impact on Asian students because they ‘were still overrepresented’ compared to their population level,” he explained, and “worse yet, the lower courts mistakenly treated evidence of disparate impact as a necessary element of an equal-protection claim.” “We would, of course, recognize,” Alito continued, “an equal-protection violation if the government had a ‘malicious intent or purpose’ to discriminate against an individual based on his or her race or ethnicity. Proof that the government’s action also injured the racial or ethnic group to which the plaintiff belongs, however, is not essential.”
The Supreme Court’s refusal to hear Coalition for TJ and Boston Parent Coalition is disappointing for all who believe in America’s promise of equal opportunity. As Alito wrote, the justices “have now twice refused to correct a glaring error that threatens to perpetuate race-based affirmative action in defiance of Students for Fair Admissions,” a 2023 decision that deemed racial preferences unconstitutional.
Yet cause for hope remains. Alito, Thomas, and Gorsuch (who, despite denying certiorari in the Boston case, questioned the BSC’s motives in enacting the zip-code quota) have caught on to colleges and school districts that choose to ignore the principle articulated in Students for Fair Admissions. “Justice Alito,” Gorsuch wrote, “expresses today a number of significant concerns about the First Circuit’s analysis, concerns I share and lower courts facing future similar cases would do well to consider.” In fact, the Second Circuit Court of Appeals ruled in September on a case involving anti-Asian discrimination in admissions at New York City’s specialized high school, which will eventually make its way to the Supreme Court.
And then, of course, there is the incoming Trump administration, which has vowed to hold accountable education institutions that engage in racial discrimination. Pam Bondi and Harmeet Dhillon—whom President Trump has nominated to be attorney general and assistant attorney general in the Civil Rights Division, respectively—should, upon confirmation, investigate the San Francisco Unified School District, Fairfax County Public Schools, New York City Public Schools, and BPS. All are home to selective public high schools that changed their admissions policies to reduce Asian and white enrollment.
It is just a matter of time before colorblindness is restored in American education.
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