Supreme Court declines to review Boston case and ‘race neutral’ efforts to diversify public schools

By John Fritze, CNN

(CNN) — The Supreme Court on Monday declined to decide whether three elite Boston public schools violated the Constitution with a zip-code based admissions policy intended to ensure racial diversity.

The appeal landed at the high court more than a year after a landmark 6-3 ruling ended affirmative action at universities and prompted school officials to experiment with “race neutral” policies – such as those based on geography – to promote diversity but fend off court challenges.

Two conservatives – Justices Samuel Alito and Clarence Thomas – dissented from the decision to not hear the case.

Alito wrote that the court was refusing “to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance” of its major affirmative action decision last year.

By passing on the case, the justices left in place a decision from a Boston-based federal appeals court siding with the school district.

Boston school officials abandoned a test-and-grades based admissions policy in 2020 for three premier schools, among the most prestigious public high schools in the nation, which together enroll almost 6,000 students. Instead, the school adopted a zip-code based model that reserved seats for students with the highest GPA from each Boston neighborhood.

A coalition of parents and students sued on behalf of more than a dozen Asian American and White students. The group said the proportion of admitted students who were White or Asian fell from 61% to 49%, claimed the policy was motivated by race and argued that it violated the equal protection clause of the 14th Amendment.

“This issue is not going away,” the Boston Parent Coalition for Academic Excellence told the Supreme Court in its appeal in April. “Should the court turn away this case, it will only embolden government officials to continue targeting disfavored racial groups – particularly, Asian Americans.”

A US District Court sided with the school, holding that the zip code admissions policy was not enacted with discriminatory intent. The Boston-based 1st US Circuit Court of Appeals affirmed that decision in December, noting that the proportion of Asian American and White students admitted was still higher than their share of the applicant pool.

The school board countered that its admissions policy has changed since the pandemic abated and so, it said, the parents’ challenge was moot. The new admissions policy relies on a combination of grades, performance on a standardized exam and census tracts.

Schools officials also stressed that their plan did not use the race of any individual student to determine admissions.

“Nothing in this court’s precedent mandates that a public body be blind to whether its race-neutral policies will have a disparate impact on historically disadvantaged groups, or even help reduce past disparate impacts,” the school board told the Supreme Court.

The Boston appeal was similar to one Virginia parents brought to the Supreme Court last year. The selective Thomas Jefferson High School for Science and Technology admitted a small share of the highest-performing students from each middle school in the county. The parents in both cases were represented by the Pacific Legal Foundation, a libertarian law group.

The Supreme Court declined to hear the Virginia case in February.

The justices last year threw out policies used by Harvard College and the University of North Carolina that considered race as one of many factors in admissions, a standard that had been approved by previous precedents. But the decision didn’t address whether schools could consider socio-economic or geographic factors as a proxy for race.

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