We have been following a case out of Boston for four years now concerning an intentionally racist high school admissions plan set up at Boston’s three elite “Exam Schools” that discriminated against Asian and White students. The “zip code” plan, rather than using merit based entrance exams, as had been done previously, admitted students equally from every zip code in the schools’ coverage area. This had the effect of increasing Black and Hispanic student admissions and decreasing those of Asian and White students:
This case was especially important because unlike a recent, similar case out of Virginia (Coalition for TJ) that the Supreme Court declined to review, this case had clear, explicit racist statements (on the record and in texts) that proved that the Boston School Committee acted with racist intent when it started discriminating against Asian and White students in the name of “equity.”These statements are summarized in a prior post on the subject:
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….
Upon conducting a thorough review of the case, the Equal Protection Project (EPP) decided to submit an amicus curiae, or friend-of-the-court, brief to the U.S. Supreme Court, asking the Court to review the case.
EPP had done the same thing when the parents in Coalition for TJ submitted their request to SCOTUS asking for review, and while we were quite disappointed when review was declined, we were cautiously optimistic that there would be a better result here.
Unfortunately, that did not happen, as the Supreme Court has declined to review the case.
One minor silver lining is that Justices Alito and Thomas issued a rare “statement” on the Court’s refusal to review, blasting the decision:
Except in extraordinary circumstances, intentional discrimination based on race or ethnicity violates th[e Equal Protection C]lause [of the 14th Amendment to the U.S. Constitution]…In making such an error, the First Circuit rendered legally irrelevant graphic direct evidence that Committee members harbored racial animus toward members of victimized racial groups. As the Committee members made “explicit,” they worked to decrease the number of white and Asian students at the exam schools in service of “racial equity.” That is racial balancing by another name and is undoubtedly unconstitutional.* * *We have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance of Students for Fair Admissions. I would reject root and branch this dangerously distorted view of disparate impact. The Court, however, fails to do so today, so I must respectfully dissent.
Justice Gorsuch also made a “statement,” saying that he didn’t think SCOTUS review was that important since the Boston School Committee has since changed their plan, but agreeing with Justices Alito and Thomas that what the lower courts and the Boston School Committee did was unconstitutional:
The difficulty, as I see it, is that Boston has replaced the challenged admissions policy…Strictly speaking, those developments may not moot this case. But, to my mind, they greatly diminish the need for our review. As a result, I concur in the Court’s denial of the petition for certiorari [i.e. review].Our decision today, however, should not be misconstrued. A “denial of certiorari does not signify that the Court necessarily agrees with the decision (much less the opinion) be low.” And, in fact, JUSTICE ALITO expresses today a number of significant concerns about the First Circuit’s analysis, concerns I share and lower courts facing future similar cases would do well to consider.[emphasis added]
The Supreme Court’s refusal to take this case is quite disappointing, but EPP will keep fighting the good fight against racism and discrimination.
And, maybe there will be some assistance coming on 1/20/2025?
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