Equal Protection Project Files Supreme Court Brief Supporting Parents and Students in Boston Zip Code Quota Case

Equal Protection Project Files Supreme Court Brief Supporting Parents and Students in Boston Zip Code Quota Case

As you know, in June of last year, the United States Supreme Court ruled in the Students for Fair Admissions cases that universities cannot use “affirmative action,” or considerations of race, in their admissions policies: Supreme Court: Harvard and UNC Affirmative Action “invalidated under the Equal Protection Clause of the Fourteenth Amendment”

The U.S. Supreme Court has dealt a blow to race-based affirmative action in college admissions and by implication elsewhere, putting to an end a narrow carve-out for higher education that had permitted colleges and universities to engage in otherwise unlawful conduct in the name of promoting diversity.

As Chief Justice John Roberts stated:

the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.

So far, so good.

The problem is that Harvard and other academic institutions have not lost their desire to base admissions on race improperly, and now they know that they have to go underground to do so. As we reported, SCOTUS “gave universities a narrow opening, and Harvard just announced it’s going to drive an affirmative action truck right through it”:

[T]here is one really important point that came near the end of the majority opinion that is a narrow path to consider applicant’s experience on race (as opposed to their race itself)(emphasis added):

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.

Harvard and others intend to use that language to undermine Students for Fair Admissions and continue to use race as a factor in admissions. That much is clear.

But there 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.

One case we saw concerning this was the “Coalition for TJ” case out of Virginia, where the local school board changed the admissions criteria to increase Black and Hispanic student enrollment and decrease Asian student enrollment: Thomas Jefferson High School Drops Out of Top Ten Nationwide After Adopting “Equity” Admissions Policy

There, the school board made clear statements that demographic balancing was an imperative to be followed and enacted a plan that was supposedly race-neutral, but wasn’t really. Instead of accepting students based only on merit, i.e. using standardized testing, etc., they picked a certain number of students from each middle school in the district. They knew this would increase Black and Hispanic student enrollment and decrease Asian student enrollment, and enacted the plan for that reason, but the courts said that was fine because Asian students were so good that even after their enrollment numbers were decimated by the plan, they were still over-represented based on their population percentages in the district.

The case went all the way up to the Supreme Court but the Justices declined to take the case, over a blistering dissent from Justices Alito and Thomas:

The Court of Appeals’ decision in this case is based on a patently incorrect and dangerous understanding of what a plaintiff must show to prove intentional race discrimination….What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe. This reasoning is indefensible, and it cries out for correction….The holding below effectively licenses official actors to discriminate against any racial group with impunity….That is indefensible [and it] defies law and logic….The Fourth Circuit’s decision is based on a theory that is flagrantly wrong and should not be allowed to stand….The Court’s willingness to swallow the aberrant decision below is hard to understand. We should wipe the decision off the books, and because the Court refuses to do so, I must respectfully dissent.

Justice Alito also postulated a theoretical high school basketball team test case to show why the Coalition for TJ plan was so unconstitutional:

Consider the following hypothetical case. Suppose that white parents in a school district where 85 percent of the students are white and 15 percent are black complain because 10 of the 12 players (83 percent) on the public high school basketball team are black. Suppose that the principal emails the coach and says: “You have too many black players. You need to replace some of them with white players.” And suppose the coach emails back: “Ok. That will hurt the team, but if you insist, I’ll do it.” The coach then takes five of his black players aside and kicks them off the team for some contrived—but facially neutral—reason. For instance, as cover, he might institute a policy that reserves a set number of spots on the roster for each of the middle schools who feed to the high school. According to the reasoning of the Fourth Circuit majority, this action would not violate equal protection because the percentage of black players left on the team (approximately 42 percent) would exceed the percentage of black students in the school. I cannot imagine this Court’s sustaining such discrimination, but in principle there is no difference between that imaginary case and one now before us.

Unfortunately the rest of the Court weren’t as interested in the case as Justice Alito, and they let it stand.

A similar “race-neutral” plan case happened in Boston, but even worse.

Like Coalition for TJ, in the Boston case the local school board used supposedly race-neutral means to increase Black and Hispanic student enrollment and decrease Asian and White student enrollment, in this case using the zip code of where each middle school student resided. And, like Coalition for TJ, the courts, in this case the federal district (trial-level) court in Massachusetts and the First Circuit federal court of appeals both said that seems fine!

Well, it’s not fine, and now the case is at the U.S. Supreme Court.

The Petition for Certiorari asking SCOTUS to take the case was written by the Pacific Legal Foundation, who are representing the Boston parents whose kids were screwed out of a good education at Boston’s top high schools despite being objectively better students. They point out this case, combined with Coalition for TJ, represent a powerful one-two punch that will allow racial discrimination in school admissions if SCOTUS doesn’t take action now.

They emphasize how the Boston case and Coalition for TJ are similar. After reviewing the Petition in detail, the Equal Protection Project decided to file an amicus curiae, or “friend of the court” brief in the Supreme Court, making our case for why the Court should take this case, even though they didn’t take Coalition for TJ. We think we add real value here, and emphasize how the two cases are different, not similar, and why that is the key to the Court taking the case even though they didn’t take Coalition for TJ.

You can review our brief here, and it is embedded at the bottom of this post, but in it we posited two main arguments as to why this case is much more egregious than Coalition for TJ.

I. Racist Statements by School Board Members Show Intent to Discriminate

At the meeting when the Boston Zip Code plan was enacted, three Boston school board members made statements so racist that all three later resigned in disgrace. Nothing like that happened in Coalition for TJ. From our brief:

First, at the Boston School Committee’s October 21, 2021 meeting, when the…Zip Code Plan was adopted, the Committee chairman was overheard, on a hot mic, making fun of and denigrating the names of Asian school parents who appeared before the Committee to testify as to the impropriety of the plan:

During this meeting, School Committee chairperson Michael Loconto made comments mocking the names of some Asian parents. Two members of the School Committee, Alexandra Oliver-Dávila and Lorna Rivera, texted each other regarding the comments, with one saying ‘I think he was making fun of the Chinese names! Hot mic!!!’ and another responding that she ‘almost laughed out loud.’ The chairperson apologized and resigned the following day.

Second, School Committee members Oliver-Dávila and Rivera, mentioned above, also made comments at the Zip Code Plan adoption meeting on October 21, 2021 that can only be described as blatantly racist:

Reacting to the Committee chairman’s mocking of Asian parent names, Oliver-Dávila texted Rivera ‘[b]est s[chool] c[ommittee] m[ee]t[in]g ever I am trying not to cry.’ Rivera responded, ‘Me too!! Wait til the White racists start yelling [a]t us!’ Oliver-Dávila then responded ‘[w]hatever . . . they are delusional.’ Additionally, Oliver-Dávila texted ‘I hate WR,’ which the parties seem to agree is short for West Roxbury, a predominantly White neighborhood. Rivera then responded ‘[s]ick of westie whites,’ to which Oliver-Dávila replied ‘[m]e too I really feel [l]ike saying that!!!!’

This open racial animus at the time of decision sets this case apart from Coalition for TJ. There, no School Committee members expressed any racial hatred or directed racial invective toward any group. And while the TJ School Committee’s generalized statements supporting “diversity” and racial balancing are bad enough on their own, they paled in comparison to what happened here. Here, both the district court and the court of appeals below found that the School Committee in question was infected with racial animus during the very meeting that they adopted the Zip Code Plan. This clear showing of intent to racially discriminate is…key….

This is important because in effect what the First Circuit held is that even in a case where clear racial hatred is expressed by those adopting a plan that racially discriminates against the targeted racial group(s) at the meeting where the plan is adopted, the fact of that racial hatred, which is clear evidence of the Committee’s intent to discriminate, is irrelevant as long as the racially discriminatory reduction in admissions was not severe enough to cause the targeted group to be underrepresented admissions-wise. That cannot be right.

We then discuss Justice Alito’s high school basketball team hypothetical, mentioned above:

Take Justice Alito’s insightful basketball team example as a test case. In it, Justice Alito postulates that in a school district that has 85 percent White students and 15 percent Black students, 10 of the 12 (or 83 percent) members of the high school basketball team are Black. Then, as a result of White parent complaints, the school kicks five of the Black players off the team for contrived, facially neutral reasons. This lowers the percentage of Black students on the team to 42 percent, which, by the Fourth Circuit’s analysis in Coalition for TJ, would have been acceptable because 42 percent still exceeds the percentage of Black students at the school.

Translating that to the instant case, assume that not only is the percentage of Black high school basketball players reduced from 83 to 42 percent, but that the high school principal is found to have been recorded during discussions with the coach mocking the names of some of the Black basketball players, and the coach is found to have used racial slurs in texts to the principal while discussing the plan to remove the Black students from the team. The First Circuit here would still endorse the Coalition for TJ approach, with the addition that it would still affirm the propriety of the team’s racial balancing in the face of these awful, racist circumstances.

We then summed up:

The court below erred because under [binding Supreme Court precedent], intent to discriminate, now on full display, is key and warrants a finding of unconstitutional racial discrimination.

In short, this Court must grant certiorari to address this new issue, i.e., the lower court’s holding that racial animus is irrelevant, which is now the law of the land in two Circuits.

II. The “Race-Neutral” Plan was Inherently Discriminatory

The plan adopted by the Boston school board was intentionally designed to reduce Asian and White student enrollment and boost Black and Hispanic student enrollment, and the means used have traditionally been used to racially discriminate. From our brief:

Here the use of zip codes was more pernicious than the use of middle schools. In Coalition for TJ, while the middle school an applicant attended might have had some relation to where the applicant lived, that relation was necessarily attenuated by special programs that drew attendees from various parts of the community not in the middle school’s vicinity, [such as the] advanced Academic Program (AAP) Level IV centers that dr[e]w in students from other middle school zones to attend them.

Here, the Boston School Committee used the zip code of residence for applicants to Boston’s Exam Schools, with seats allocated to students “living in the zip code with the lowest median family income (for families with school age children), and continuing with applicants in each zip code in ascending order of the zip code’s median family income.” That this caused a drop in attendance by White and Asian-American students and an increase in Black and Hispanic student enrollment is undisputed and was acknowledged by the court below. The use of zip codes or other geographical markers to define the location of residence has long been associated with historically racially discriminatory practices, such as redlining.

The Federal Reserve has a succinct explanation of redlining:

Redlining is the practice of denying people access to credit because of where they live, even if they are personally qualified for loans. . . . The FHA was the architect of federally sponsored redlining from 1934 until the 1960s. . . . The FHA began redlining at the very beginning of its operations in 1934, as FHA staff concluded that no loan could be economically sound if the property was located in a neighborhood that was or could become populated by Black people, as property values might decline over the life of the 15- to 20-year loans they were attempting to standardize. . . . For the next few decades, the FHA generally favored loans on new construction in suburban areas rather than urban areas with . . . Black residents.

We then explained how that applied to the Boston Zip Code Case:

The Boston School Committee used the zip codes of the Exam Schools’ applicants to meticulously enact a plan that the Committee knew would cause an increase in Black student attendance at the Exam Schools, rather than a reduction, and a reduction in White and Asian-American student attendance, just as surely as the FHA knew that classifying Black neighborhoods as “inharmonious” and then “redlining” them, would necessarily lead to Blacks being denied access to mortgage credit.

The comments made by school board members reinforced the use of zip codes as a tool to racially discriminate:

Boston School Committee member statements at the Oct 21, 2021, Zip Code Plan enactment meeting make clear that zip codes were a proxy for racial targeting. Committee member Oliver-Dávila texted that she “hated” a predominantly White neighborhood in Boston, and in another Oliver-Dávila and Committee member Rivera agreed that they were “sick of ” the White residents of that neighborhood.

The use of zip codes was the means to punish these residents in that neighborhood by enacting a plan guaranteed by historical pedigree to reduce the residents’ children’s enrollment at Boston’s elite Exam Schools. And we must not forget the Committee chairman, who resigned in disgrace after callously mocking the names of Asian-American parents of school children who desired to attend the Exam Schools. He shepherded the Committee to a positive vote on a plan that would decimate enrollment for the very racial group whose names he had denigrated, using the redlining plan guaranteed to do so.

We then summed up:

This is more damning evidence of intent to discriminate, which was not present in Coalition for TJ, and this evidence, and the First Circuit’s opinion here, far more so than in Coalition for TJ, “cries out for correction.”

In short, the Court should grant certiorari for the additional, critical reason that the supposedly “race neutral” use of zip codes was not in fact race neutral, and amounted to redlining.

We are extremely hopeful that at least four SCOTUS justices will understand how important this case is and vote yes to review the case. It is a much worse case, in terms of intentional racial discrimination, than Coalition for TJ, so we are extremely hopeful.

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