Could Harvard affirmative action ruling threaten Boston exam school policies?

All eyes in the higher education world are on the Supreme Court, which is expected to rule any day on whether universities can use race as a factor in admissions decisions. But the case – involving Harvard and the University of North Carolina – could have ripple effects into K-12 education that land squarely in Boston, where recent changes to the admission policies for the city’s three exam schools are being challenged as discriminatory. 

In the higher ed case, the expectation is that the court, under its strong conservative majority, is likely to ban colleges and universities from using race as an explicit factor in admissions. If it does so, however, that would not only set new rules for higher education, it would raise the prospect of the court digging in one level deeper on policies aimed at promoting diversity in educational settings.

That next question, which is essentially waiting in the legal on-deck circle, asks whether it’s acceptable to use race-neutral admissions criteria that are nonetheless aimed at changing the racial balance of a school’s makeup? 

That, say plaintiffs in a Boston lawsuit, is exactly what the school district did in 2020 when it adopted a new system for admission to the city’s three selective-entry exam schools – Boston Latin School, Boston Latin Academy, and the John O’Bryant School of Mathematics and Science, which enroll students in grades 7-12. 

Instead of ranking applicants citywide based solely on grades and results on a standardized test, the district used only grades. After awarding 20 percent of seats according to a citywide ranking of applicants, the remaining 80 percent of exam school seats were awarded based on grade ranking within ZIP codes, with the number of seats set aside within each ZIP code in proportion to the population of school-aged children living there. 

Although the new policy did not explicitly use race as a factor, the changes were driven by long-standing criticism that at Boston Latin School, in particular, Black and Hispanic students were significantly underrepresented relative to their makeup in the overall district student population. Following the change, the White enrollment at Boston Latin dropped from 46 percent to 38 percent, while Black student enrollment rose from 7.6 percent to 12 percent. 

A lawsuit challenging the change as discriminatory against White and Asian students has been working its way through federal court. After being rejected by a federal district court judge, the plaintiffs brought their case to the Appeals Court, which heard arguments in December. 

While the court has yet to issue a ruling, an Appeals Court in Virginia issued a ruling a little more than a week ago in a similar case involving a selective-admissions high school there. In a split 2-1 decision, the court ruled that Thomas Jefferson High School, in Alexandria, could maintain a new admission system that awards seats to the top students from each middle school in the area instead of by ranking all students together. Because top-achieving students are concentrated at a handful of middle schools with high Asian student enrollment, the change led to an increase in Black and Hispanic students at the school and a sharp drop in Asian student enrollment – from 73 percent to 54 percent. White student enrollment actually increased slightly. 

While the Appeals Court upheld the new admissions policy, New York Times Supreme Court reporter Adam Liptak paid more attention to the dissent by Judge Allison Rushing, a Trump appointee, whose views may align more closely with those of the Supreme Court’s current right-leaning majority. 

In her dissent, Liptak said, Rushing wrote that the Appeals Court majority had refused “to look past the policy’s neutral varnish” and consider instead “an undisputed racial motivation and an undeniable racial result.”

That is exactly the argument being made by the plaintiffs in the Boston case.

“Even using race-neutral means, if your intent is to racially balance the school, that’s discriminatory intent under the Supreme Court’s case law,” said Christopher Kieser, an attorney with the libertarian-oriented Pacific Legal Foundation, who is handling the Boston appeal.

The California-based legal center is also representing Asian parents in the lawsuit against the new Thomas Jefferson High School policy. “All of these admissions overhauls were enacted because of the racial effect the decision-makers thought or knew would happen,” Kieser said on Wednesday. 

Kieser said Pacific Legal plans to ask the Supreme Court to take up their case challenging the Thomas Jefferson High School ruling. Depending on timing – and on the Appeals Court ruling – he said the Boston case could be joined with it. 

The Boston case is different because it challenged a temporary policy that was in place for only one year, implemented at the height of COVID. But the permanent policy that was subsequently adopted could face a similar challenge, as it uses race-neutral socioeconomic tiers, rather than ZIP codes, to award seats that critics say also end up serving as a proxy for race. 

Liptak calls it “a decent bet” that the Supreme Court will agree to hear an appeal in the Thomas Jefferson case to settle this next-level question regarding overtly race-neutral standards. He looks no further for signs of that than comments from Justice Brett Kavanaugh to plaintiffs  during arguments in the Harvard case. 

“Your position will put a lot of pressure going forward, if it’s accepted, on what qualifies as race neutral in the first place,” Kavanaugh said.