Boston’s racial balancing of elite public schools upheld by First Circuit

BOSTON (CN) — Boston may change the admission criteria for its elite public exam schools in order to boost the number of Black and Hispanic students and limit the number of whites and Asian-Americans, the First Circuit held Tuesday — despite the Supreme Court’s ruling over the summer that affirmative action policies at nearby Harvard University violated the Equal Protection Clause.

Race-conscious admissions policies are acceptable if they’re “facially neutral,” the First Circuit said, such as in this case, where the city altered its rules to spread admissions more evenly among the city’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,” U.S. Circuit Judge William Kayatta wrote in a 34-page decision.

Boston’s three exam schools are consistently ranked among the best public schools in the country, according to U.S. News & World Report. One of them, Boston Latin, was founded in 1635 and is the oldest secondary school in the U.S.

Before 2021, admission to the schools was based on a citywide competition. That year, however, the school committee adopted a plan under which 80% of the seats would be divvied up evenly among the city’s 29 zip codes, which increased Black and Hispanic enrollment and reduced the number of white and Asian-American students by about 20%.

The plaintiffs, a coalition of white and Asian-American families, claimed the plan was racist in intent, and said the chair of the seven-person school board was caught on a hot mic ridiculing the names of Chinese parents who had signed up to speak against the proposal. Two other board members exchanged text messages in which they said that making fun of the Chinese made them “giddy” and that they “almost laughed out loud.” One remarked she was “sick of … whites,” and the other replied, “me too.” All three resigned after the messages became public.

Racial integration of public schools has been a hot-button issue in Boston since the 1970s when court-ordered busing led to violence and unrest. The busing controversy changed the demographics of the city by prompting “white flight” to the suburbs, and today whites account for only 16% of Boston’s 48,000 public-school students, with Asian Americans accounting for another 7%.

Despite this, prior to the new policy, whites and Asian-Americans made up 60% of the exam school students.

Some 34 of the city’s 115 public schools rank among the worst 10% in the state, according to the state Commissioner of Elementary and Secondary Education, highlighting the stakes of admission to the exam schools.

The plaintiffs’ coalition argued that the switch to the zip-code policy had an unfair disparate impact on whites and Asian-Americans. But “the coalition has it backwards,” Kayatta said: The reality is that the previous criteria had a disparate racial impact, and the city was within its rights to adopt new, facially neutral rules that reduced this disparate impact.

“As between equally valid, facially neutral selection criteria, the school committee chose an alternative that created less disparate impact, not more,” Kayatta wrote, adding that the prior plan had given whites and Asian-Americans “stark over-representation.”

Kayatta, an Obama appointee, had wondered at oral argument a year ago whether the Supreme Court’s then-pending Harvard case would require a different result, but he analyzed the language of the Supreme Court’s 6-3 ruling and concluded that it didn’t.

He noted that three of the justices in the majority (Gorsuch, Thomas and Kavanaugh) “separately stressed that universities can lawfully employ valid facially neutral selection criteria that tend towards the same result,” including giving added weight to students from economically disadvantaged backgrounds and eliminating preferences for the children of donors, alumni and faculty.

Therefore, Kayatta said, while admitting students solely on the basis of race was unconstitutional, six of the nine justices agreed that it was permissible to achieve racial balancing through other, more neutral criteria.

Kayatta’s opinion was joined by U.S. Circuit Judges O. Rogeriee Thompson, another Obama appointee, and Jeffrey Howard, who was appointed by George W. Bush.

The zip-code plan at issue was put on hold after the plaintiffs brought their lawsuit. For now, admission to the elite schools has gone back to a citywide competition. The standardized test has been replaced by a new test that the school committee has deemed fairer to minorities.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit