US Supreme Court passes on Boston exam school challenge

THE HIGHEST COURT in the land has waved away a challenge to a Boston exam school admissions policy made mid-pandemic to boost the diversity of the elite high schools’ student bodies. This marks the second time this year that the majority of the court opted against weighing in on policies that use geographic proxies for race to allow more Black and Latino students to enroll in competitive high schools.

The US Supreme Court decided not to take up an appeal from the Boston Parent Coalition for Academic Excellence, which argued that a 2021-2022 policy was deliberately discriminatory against white and Asian students in order to achieve a preferred racial balance. 

“[T]he record provides no evidence of a relevant disparate impact,” a First Circuit Appeals Court concluded in December 2023. “And the evidence of defendants’ intent to reduce racial disparities is not by itself enough to sustain the Coalition’s claim.”

To be heard before the US Supreme Court, a case needs at least four justices to agree to grant the petition – a writ of certiorari. Most of the court does not often explain why cert is denied, though justices sometimes pen irritable rebukes when a case they would like to see taken up is instead kept off their plate by their colleagues.

Two conservative justices – Samuel Alito and Clarence Thomas – dissented from the Boston case denial in a response written by Alito. The same pair offered a scathing objection when, in February, the majority of the high court decided not to hear a challenge to a similarly designed policy for a Virginia magnet high school. 

“We have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance of Students for Fair Admissions,” Alito wrote, referring to the case that overturned Harvard’s use of race in its admissions process. “I would reject root and branch this dangerously distorted view of disparate impact.”

Disparate impact is the test used to figure out if a policy is unconstitutionally discriminatory. The Appeals Court determined that the Boston policy, though aimed at adjusting the demographics of the exam schools, was technically neutral when it comes to prohibited discrimination and still left white and Asian students in the majority. Alito wrote that the clear intent at racial balancing should be enough to clear that bar.

For the two decades preceding the 2021-2022 school year, the three Boston exam schools used a combination of student GPA and a standardized test to determine admittance. In 2020, the demographic makeup of students admitted to Boston Latin Academy, the John D. O’Bryant School of Mathematics and Science, and Boston Latin School was 39 percent White, 21 percent Asian, 21 percent Latino, 14 percent Black, and 5 percent mixed race.

By contrast, the Boston Public Schools student population in the 2022-2023 school year was 44 percent Hispanic, 28 percent Black, 9 percent Asian, and 15 percent White.

After meetings and focus groups, with the COVID-19 pandemic raging, the Boston Public Schools landed on an admissions policy for the 2021-2022 school year that allocated 20 percent of the seats at the exam schools to students with the best grades citywide and the remainder to the top students in each zip code. This was designed to increase admission of students from more diverse areas in an effort to increase the diversity of exam school admissions as a whole.

Working group members discussed racial makeup openly during the deliberations, according to the Appeals Court decision. (The chair of the Boston School Committee, Michael Loconto, resigned after being caught on a hot mic appearing to mock the names of Asian American commenters during the policy change process.)

While the Appeals Court considered the case, changes were afoot at the Supreme Court, which in June 2023 restricted the use of race in school admissions through the Harvard case. In an opinion written by Chief Justice John Roberts for a 6-3 court split along political lines, the high court struck down affirmative actions policies explicitly designed to take a student’s race into account, but left some options for universities using “holistic” admissions standards. 

As Roberts wrote, “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university.” 

Civil rights groups argued at the time that this may also leave the door open for admissions processes in which socioeconomic class or zip code could be used as a proxy for race, as with Boston’s exam schools. Boston later replaced the 2021–2022 admission policy with a new policy combining exam scores, grades, home zip codes, and socio-economic status that the coalition did not challenge.

That the Supreme Court gave both the Boston and Virginia cases a pass “sends a clear signal: there’s no appetite for extending the affirmative action decision beyond its narrow scope in college admissions,” Iván Espinoza-Madrigal, executive director of Lawyers for Civil Rights, said in a statement Monday. 

Justice Neil Gorsuch offered an opinion tempering that take, writing that he agreed it was probably best that the court not take up the now-out-of-use policy, but “our decision today, however, should not be misconstrued” as agreeing with the Appeals Court’s opinion. He suggested Alito’s concerns have some sympathetic ears on the high court, “which lower courts facing future similar cases would do well to consider.”