A federal appeals court ruled on Dec. 19 that Boston may use racially discriminatory admission criteria for its elite public schools even after the U.S. Supreme Court found earlier this year that colleges and universities may not use affirmative action policies in their admissions process.
The appellate court ruling may be appealed to the U.S. Supreme Court.
That ruling came after the U.S. Supreme Court held on June 29 in Students for Fair Admissions Inc. v. President and Fellows of Harvard College that the post-secondary institution’s race-based policies “cannot be reconciled with the guarantees of the Equal Protection Clause.”
The new, unanimous decision by a three-judge panel of the U.S. Court of Appeals for the 1st Circuit in Boston Parent Coalition for Academic Excellence Corp. v. The School Committee for the City of Boston held that the city’s school board may attempt to increase the admissions numbers of black and Latino students at the expense of white and Asian students. The committee, in charge of the city’s public schools, changed the rules to distribute admissions more evenly among Boston’s zip codes.
“There is nothing constitutionally impermissible about a school district including racial diversity as a consideration and goal in the enactment of a facially neutral plan,” wrote the judge, who was appointed in 2013 by President Barack Obama.
According to the Pacific Legal Foundation (PLF), Boston’s school committee runs three prestigious “exam schools” for students in grades 7 through 12. The Boston Latin School, reportedly the nation’s oldest public school, along with the Boston Latin Academy and the John D. O’Bryant School of Mathematics and Science, are three of the best thought of public high schools in the United States.
Admission to these schools was traditionally decided on a merit-based “composite score” consisting of an admissions exam and the applicant’s grade point average (GPA). Students were admitted according to score rankings until each school was full.
But the Boston school board became dissatisfied with the school’s racial composition and, in 2019, changed the admissions policy “in a process that was blatantly, transparently—and unconstitutionally—preoccupied with race,” PLF said.
The board and a working group devised a new policy to achieve the racial balance they preferred. One working group member said “rectifying historic racial inequities afflicting exam school admissions for generations” was of critical importance.
One school committee member was caught on a hot mic mocking Chinese names, and two of his colleagues laughed in response via text message, PLF said.
The school committee ended up replacing the citywide admissions process with a zip code-based quota. Students with the highest GPAs would fill 20 percent of seats at each school, with the remaining 80 percent of seats being allotted to students from each zip code based on GPAs.
In the fall of 2021, the new policy began to affect admissions and those who would have been accepted under the old policy suddenly were denied admission.
At that time, “white student representation in seventh- and ninth-grade classes dropped from 33% to 24% while Asian American representation dropped from 21 percent to 16 percent.
“ZIP Codes with mostly white and Asian American students—specifically Chinatown and West Roxbury—had much higher competition for seats. The average GPA of students admitted from West Roxbury was 11.51 compared to several other ZIP Codes where the average GPA was at least two points lower,” PLF said.
The Boston Parent Coalition for Academic Excellence, a group consisting of students, parents, and alumni who support merit-based admissions, sued in federal district court and lost.
PLF attorney Christopher Kieser told The Epoch Times that the policy runs afoul of the Constitution’s Equal Protection Clause because governments cannot use racial proxies such as zip codes to try to achieve supposed racial balance.
In the new opinion issued by the 1st Circuit, the court held that “we didn’t establish that the plan had a disparate impact on Asian and white students,” the lawyer said in an interview.
The court agreed that the policy was calculated to reduce the percentage of Asian and white students but held that “there’s still not a disparate impact … because Asian and white students are still over-represented compared to their percentage in Boston public schools.”
Mr. Kieser said, according to his reading of the circuit court’s theory, “It appears that no one could bring a successful equal protection claim unless the percentages fell below what they are represented as in the industry as a whole.
“And in our view, that is not the proper way to evaluate disparate impact. The proper way, instead, is just to look at whether there’s an additional burden placed on members of a racial group. And here, we believe that our evidence shows that if you were living in a census tract that was substantially white or Asian, you needed a much higher GPA to get into the exam schools.”
Unfortunately, here the 1st Circuit followed the lead of the 4th Circuit in a case about the Thomas Jefferson High School for Science and Technology, a top-notch public school in Virginia, he said.
Parents complained about the policy at the Virginia school that removed standardized tests from the admissions analysis and added experience factors, leading to a reduced percentage of Asian American students being accepted. PLF is representing those challenging the policy.
But last year, the 4th Circuit refused to overturn the policy.
The Boston case, like the Virginia case, deserves to be considered by the U.S. Supreme Court, Mr. Kieser said.
“This is the next frontier in terms of racial discrimination in schools because if you can accomplish the same thing indirectly that you can’t do directly, then the Supreme Court’s opinion in Students for Fair Admissions is not going to mean much,” he added.
The School Committee for the City of Boston’s spokeswoman, Liz Sullivan, declined to comment.
