BOSTON (CN) — The Supreme Court’s pending case on affirmative action at Harvard weighed heavily on the First Circuit Wednesday as it tried to decide the constitutionality of a plan that changed the racial balance of Boston’s prestigious public exam schools.
The First Circuit gave the plan a green light this past April, having denied a preliminary injunction. But the fact that, by Halloween, the Supreme Court’s conservative justices seemed inclined to revise or overrule the high court’s precedents caused the circuit panel to give the Boston plaintiffs a more sympathetic hearing this time around.
U.S. Circuit Judge William Kayatta repeatedly referenced the Harvard case at oral argument Wednesday and seemed inclined to think that racial gerrymandering in education was, or would soon be, illegal. The argument turned instead on whether it’s OK to use facially neutral criteria as a proxy for race and what evidence is required to prove a violation.
Boston’s three public exam schools are consistently ranked among the best public schools in the country, as tabulated by 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 exam schools was based on a citywide competition. But that year the school committee adopted a plan in which 80% of the seats would be divvied up among the city’s 29 ZIP codes, which increased Black and Hispanic enrollment while reducing the number of white and Asian-American students by about 20%.
The plaintiffs, a coalition of white and Asian-American families, claim the plan was racist in intent and that 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 members exchanged text messages in which they said 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.
Kayatta struggled with whether a facially neutral, ZIP code-based plan violated equal protection if its real goal was to target whites and Asians. The plaintiffs’ lawyer, Chris Kieser of the Pacific Legal Foundation, argued that facial neutrality didn’t matter if the plan was racist in design.
Rather than arguing that it was permissible for the plan to promote racial balance, lawyers for the school committee and the NAACP instead claimed that the plan wasn’t about race at all — this despite the racist text messages and the fact that one committee member complained during deliberations that the plan didn’t go far enough because it still admitted too many white people.
“Race was never considered. ZIP codes are not a proxy for race,” insisted the NAACP’s lawyer, Doreen M. Rachal of Sidley Austin’s Boston office.
There was “no evidence of invidious race discrimination,” the school committee’s attorney, Kay Hodge, claimed, although the Stoneman Chandler lawyer backtracked almost immediately and acknowledged that race was one factor along with geographic and socioeconomic diversity.
The defendants made more headway when they argued that, even though the plan reduced the number of whites and Asians at the exam schools, whites and Asians were still overrepresented compared to their percentage of the school-age population.
“The plaintiffs want to say that whites and Asians were overrepresented and they want that as a baseline and they want to continue to be overrepresented,” Hodge complained.
Kayatta noted that the plan made it harder for students in predominately white and Asian ZIP codes to be admitted than for students in predominately Black and Hispanic ZIP codes. “What’s the flaw in that?” he asked. Rachal replied that the plaintiffs should have been required to present expert testimony from a statistician.
Hodge also spent a lot of time trying to persuade the court to throw the case out on a technicality because it was brought by a coalition of families without the individual students who were denied admission named as plaintiffs. This didn’t impress the judges.
“If we dismiss the case for mootness, couldn’t the students just bring the exact same case?” Kayatta asked, to which Hodge had no good answer.
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 racial minorities account for nearly 80% of Boston’s 48,000 public-school students. Some 34 of the city’s 115 public schools are ranked 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 plan at issue in the First Circuit case was suspended after the plaintiffs brought their lawsuit, but the plaintiffs are arguing that students who were denied admission due to the constitutional violation should be admitted to the schools now.
Entrance to the elite schools will go back to a citywide competition next year, although the standardized test has been replaced by a new test that the school committee has deemed fairer to minorities.
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