One of the cases we have been tracking for some time is the “Boston Zip Code” case. In this case, the Boston School Board, known as the “School Committee,” discriminated against Asian and white high school students using surreptitious “race-neutral means,” unlike the explicitly racist means that Harvard and the University of North Carolina used in admissions, which the U.S. Supreme Court threw out in the Students for Fair Admissions case.From our original post on the Boston Zip Code case: 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.
Amazingly enough, the federal judge hearing this case ruled that the School Committee’s discriminatory plan was A-Ok, despite finding that the plan reduced Asian and white student enrollment at elite Boston high schools: As Predicted, Boston “Zip Code Quota Plan” For Elite Public Schools Reduced Asian and White Admissions, Raised Black and Latino:
In mid-April, federal court Judge William Young…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, 2021A key finding…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. [From the Court’s Order]:
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 fact necessarily 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 parents have appealed, but were denied an emergency injunction pending appeal:
Eliminating or minimizing standardized tests is anti-Asian discrimination, both in intent and result. Anyone who lives in the real world knows that.
While the parents’ appeal was pending, the Boston Globe released some leaked text messages that indicated that at least some of the School Committee members who approved the underhanded “Zip Code Plan” were blatant racists. The case then went back to Judge Young for a ruling on whether this changed his opinion about the discriminatory nature of the plan, and he said NO!, as we reported:
[I]n the Boston Zip Code case, School Committee members made blatantly racist statements against whites, such as that they hated majority white West Roxbury, Massachusetts, and that they were “sick of westie whites” while they were enacting the zip code plan that discriminated against whites and Asian students. And yet the court, after a coalition of parents sued the school district, gave them a pass:
This Plan is not the celebrated result of transcending racial classifications that this Court once found it to be. Three of the seven School Committee members harbored some form of racial animus, and it is clear from the new record that the race-neutral criteria were chosen precisely because of their effect on racial demographics. In other words, but for the increase in Black and Latinx students at the Exam Schools, the Plan’s race-neutral criteria would not have been chosen. . . . [But, t]he Plan’s criteria are all facially race neutral. The precedent is clear that when the governmental action is facially race neutral, ‘good faith [is] presumed in the absence of a showing to the contrary,’ i.e., unless the plaintiff proves disparate impact and discriminatory animus under Arlington Heights.
Did you catch that? Essentially the court said that even if discriminatory intent, in the form of blatantly racist statements, is crystal clear, and even if those statements are combined with, and caused an undisputed dramatic racial impact, the mere use of a race-neutral scheme magically makes the plan constitutional.
That cannot be right.
This is important because after Students for Fair Admissions, school administrators know that they have to use sneaky, “race-neutral means” if they want to discriminate, and doing so is becoming more common.
In fact, a somewhat similar case in Virginia, called Coalition for TJ, has now been offered to the U.S. Supreme Court, and the Equal Protection Project has filed an amicus, or “friend of the court,” brief in that case, asking the Supreme Court to take the case: Equal Protection Project Files SCOTUS Brief Supporting Asian Students in Coalition for TJ Case:
[T]here is also another method that entities bent on the improper use of race can use to racially discriminate; namely, the use of some sort of supposedly “race-neutral” means or scheme to enact the same sort of racially discriminatory school admissions that we saw at Harvard and UNC.[C]ases have popped up in Maryland, New York, and other places, all bearing the same earmarks: using a “race-neutral” scheme to accomplish a discriminatory purpose….A similar thing happened in Fairfax County, Virginia, at the Thomas Jefferson High School for Science and Technology (also known as “TJ”), one of the best high schools in the country. But the “Coalition for TJ,” a group of TJ parents upset about a new admissions policy that was supposedly race-neutral, but that would (and did) cause Asian high school student admissions to plummet, sued TJ….
The Coalition for TJ parents group initially won their case at the federal trial court level, but then on appeal, the Fourth Circuit U.S. Court of Appeals reversed, in a 2-1 decision, meaning the parents lost their case. So they asked the U.S. Supreme Court to take their case, and EPP supported the parents by further explaining to the Supreme Court why they should take the case.
Getting back to the Boston Zip Code case, the First Circuit U.S. Court of Appeals, which is overseeing the appeal in that case, has just ruled on the appeal and says that the School Committee’s discriminatory plan is constitutional.
From the opinion:
[W]ith respect to the prior year, the percentages of invited students classified as White dropped from 40% to 31%, while the percentage classified as Asian dropped from 21% to 18%….More evidence of intent does not change the result of this case, given that our analysis assumes that the Plan was chosen precisely to alter racial demographics. We recognize that the text messages evince animus toward those White parents who opposed the Plan. But the district court supportably found as fact that the added element of animus played no causal role that was not fully and sufficiently played by the motive of reducing the under-representation of Black and Latinx students….So, we need not decide what to make of a case in which a school district took action to reduce a numerically over-represented group’s share of admissions because of animus toward that group….For the foregoing reasons, we affirm the district court’s…judgment rejecting the Coalition’s challenges to the Plan.[emphasis added]
I predict that I am going to reread that opinion about eight more times so that I can figure out how they determined that a case involving clear disparate impact caused by obvious and undisputed racial animus constituted no constitutional violation.
In my opinion, the chances of the Boston parents asking the U.S. Supreme Court to review this case are near 100%, which means that there will now be two “race-neutral means” cases asking the Supreme Court to rule on this latest trend in school admissions.
And EPP will be there to support the Boston parents with an amicus brief, like we did the Virginia parents.
This underhanded, “race-neutral means” subterfuge has got to be stopped.
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