In late February 2021, we covered a lawsuit filed by a group of Boston, Massachusetts, parents objecting to changes to admissions criteria for an elite public school, Boston Parents Sue Alleging Discrimination Against Asians and Whites In Change of Prestigious Public School Admissions:
Boston Parent Coalition for Academic Excellence (BPCAE) has sued over changes in how students are admitted to a small number of prestigious public schools.Previously, admission was based on test scores, but Boston, claiming the results were racially unequal, decided to factor in zip codes as to admission. The result would be to exclude many asian-american and white students who otherwise would have gained admission. The parents group alleges the use of zip codes was a subterfuge for illegal use of race and ethnicity.
The Complaint asserted that zip codes were being used as a proxy for race and ethnicity. Here is the Introduction:
“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people, and therefore are contrary to our traditions and hence constitutionally suspect.” Fisher v. University of Texas at Austin, 570 U.S. 297, 309 (2013) (citations and quotations omitted). In contravention of this fundamental principle of American values – and constitutional law – the Defendants have imposed upon the school children of Boston a racial and ethnic classification system for entry into its most prestigious public schools: the Boston Latin School, the Boston Latin Academy, and the John D. O’Bryant School of Mathematics and Science, known collectively as the Boston Exam Schools.Defendants achieved this by subordinating the longstanding merit-based citywide competition to a newly-created, and wholly-irrational quota system based on zip codes, which have never been a unit of educational qualification, and which are being purposefully used here as a proxy for race and ethnicity (the “Zip Code Quota Plan”). By depriving some school children of educational opportunity based on their race or ethnicity, Defendants do great harm, not only to the children they seek to exclude but also to the Boston Exam Schools, which they would use as the instruments of their discrimination, to the City of Boston, and to this country’s cherished principle of equal protection.It is to vindicate these important interests – and to safeguard the educational opportunities that Defendants would impair – that the Boston Parents bring their Complaint before this Court.
The Complaint alleges discriminatory intent and result:
25. The Defendants’ purpose in recommending, adopting and implementing the Zip Code Quota Plan is to disfavor certain racial and ethnic groups (Asian and White applicants) while favoring others (Latino and African-American applicants).26. The effect of the Zip Code Quota Plan is likewise to disfavor certain racial and ethnic groups (Asian and White applicants) while favoring others (Latino and African-American applicants).* * *33. The purpose and effect of the Zip Code Quota Plan are to use zip codes as precisely such a proxy for race and ethnicity, so as to artificially favor Latino and African-American students to the detriment of Asian and White students. This violates the Equal Protection Clause of the Fourteenth Amendment.
In mid-April, federal court Judge William Young (you may recall him from the Shoebomber case), ruled in favor of the school district, denying injunctive relief and dismissing the case. You can read the full decision here:
Boston Parents v. Boston City Schools – Order Dismissing Case – April 15, 2021
The court ruled — in what is called non-binding dicta because it was not dispositive of the case — that “equity” of result would have been stricken.
Without question, some statements [of school board officials] raise cause for concern. The statement within the Equity Planning Tool, for example, about a hard pivot away from equality and towards equity simply has no support in the Equal Protection jurisprudence of the Supreme Court. See, e.g., Feeney, 442 U.S. at 273 (“[T]he Fourteenth Amendment guarantees equal laws, not equal results.”). Had this Plan unconstitutionally substituted equality of result for equality of opportunity along racial lines, this Court would not hesitate to strike it down.But that is not what happened here.
That’s important to keep in mind given how pervasive “equity” (equality of result) is throughout Critical Race Training and it’s various offshoots, such as “Diversity, Equity, and Inclusion.”
A key finding, however, was that zip codes in this plan were not a proxy for race or ethnicity, and hence did not subject the plan to “strict scrutiny” review, only “rational basis” review.
Apparently well counseled, the School Committee considered diversity and developed its Plan within the permissible framework of the Supreme Court precedent. Despite its goal of greater “racial, socioeconomic and geographic diversity [better to reflect the diversity of] all students (K-12),” the Plan principally anchors itself to geographic diversity by equally apportioning seats to the City’s zip codes according to the criterion of the zip code’s percentage of the City’s school-age children. See supra Section II.D. The Plan similarly anchors itself to socioeconomic diversity by ordering the zip codes within each round by their median family income. See supra Section II.D. The Plan is devoid, however, of any anchor to race. See supra Section II.D…The School Committee’s goal of a more racially representative student body, although more often discussed and analyzed, did not commandeer the Plan, and it in factnecessarily took a back seat to the Plan’s other goals, which the Plan more aptly achieved. Consequently, any effect on the racial diversity of the Exam Schools is merely derivative of the Plan’s effect on geographic and socioeconomic diversity — not the reverse.This Court finds and rules that the Plan is race-neutral, and that neither the factors used nor the goal of greater diversity qualify as a racial classification.
That finding, of course, lacked a certain reality. As Judge Young noted, the school board was “well counseled” — i.e., the lawyers told them which magic wording needed to be used to survive a court challenge.
We know Judge Young’s findings lacked a reality check because the results of the plan were just released, and the use of zip codes had the intended racial and ethnic impact on admissions. The Boston Globe reports, Changes in admission rules for Boston exam schools boosted diversity of accepted students:
A temporary change in the admissions criteria for Boston’s exam schools increased the diversity of the accepted applicants, particularly boosting the percentages of Black, Latino, and low-income students, according to data released Friday.The data analysis confirms earlier projections that temporarily suspending the admissions exam and instead using grades and ZIP codes would lead to a more diverse selection of applicants and lower the portion of white and Asian students receiving admission offers….The portion of admission offers going to white applicants decreased to 26 percent this year from 33 percent last year. For Asian applicants, acceptances dropped to 16 percent this year from 21 percent last year, according to data released by the school department.By contrast, the portion of acceptances sent to Black applicants rose to 24 percent this year from 18 percent last year, and those going to Latino applicants increased to 28 percent this year from 24 percent last year.The data do not include a racial breakdown of acceptances at each institution: Boston Latin School, Boston Latin Academy, and the O’Bryant School of Math and Science….William Hurd, an attorney for the parents group, suggested in a statement that the school department analysis reinforces his clients’ concerns.“The goal of the Zip Code Quota Plan was to reduce the opportunity for Asian and White students to attend the Exam Schools, by limiting competition for 80 percent of the seats,” he said. ”The Boston School Committee achieved — indeed, surpassed — its goal. We continue to believe that such racial gerrymandering violates the constitutional right to equal protection.”
The parents have appealed, but were denied an emergency injunction pending appeal:
The plan challenged in court was only temporary, for this incoming applicant class. Boston is in the process of deciding whether to make it permanent.
Eliminating or minimizing standardized tests is anti-Asian discrimination, both in intent and result. Anyone who lives in the real world knows that.
CLICK HERE FOR FULL VERSION OF THIS STORY