Amicus Brief: Boston Parent Coalition for Academic Excellence v. School Committee for the City of Boston

Boston Public Schools maintain three competitive admission middle/high schools traditionally known as the “exam schools.” This group includes Boston Latin School, the oldest public school in North America that boasts five signers of the Declaration of Independence as alumni. Traditionally, admission rested heavily on the results of a standardized test: the schools admitted students with the best combination of test score and grades in math and English. They continued to be the crown jewels of the Boston public school system and among the best high schools in the country.

In the midst of the pandemic, however, the Boston School Committee became obsessed with overhauling exam-school admission in pursuit of racial balance. BPS’s superintendent convened a working group chock full of activists. Unsurprisingly, the working group returned a recommendation intended to accomplish racial balancing: a zip-code quota system. The School Committee largely accepted the recommendation, with multiple members supporting the quota specifically because it would advance racial balance. But wait, there’s more: three of the seven members of the School Committee that voted to implement the zip-code quota for the 2021 admissions cycle were forced to resign over racist comments. The committee chair resigned after he was caught on a hot mic ridiculing the names of Chinese-American parents who had signed up to criticize the proposal, while two other members resigned after the Boston Globe published their racist texts complaining about white and Asian parents.

The zip-code quota made it much harder for Asian and white applicants to get into the exam schools. It eliminated the longstanding standardized test, leaving GPA as the sole academic criterion for admission. Then it effectively established different admissions tracks for each zip code in Boston. Because applicants’ qualifications vary widely by zip code, it took a much higher GPA to get in from certain zip codes than from others. The working group had run simulations that predicted that this effect would reduce the proportion of white and Asian students admitted to the exam schools by forcing them to compete against each other for limited seats in the most competitive zips. And that’s what happened. The average admitted student from West Roxbury—a predominantly white and Asian neighborhood—had a GPA of 11.51 out of 12, and no students with a GPA below 10 was admitted. But there were multiple zip codes, with mostly black and Hispanic students, where the average admitted student had a GPA below 10. Mission accomplished!

The zip code quota used for the 2021 admissions cycle was tweaked afterwards, so this precise system was only in use for one year. But Boston Parent Coalition for Academic Excellence represents 14 students who applied for that year’s class. While the group initially sought an injunction that would have prohibited using the quota system, that became impossible once admissions decisions were released after the district court ruled against them. After judgment was entered and appeal was already pending, the Boston Globe uncovered text messages that should have been produced in response to the records requests that showed two School Committee members sending racist text messages about white and Asian parents. The Coalition went back to the district court and filed a Rule 60 motion to alter the judgment. The district court rescinded its initial opinion, but ultimately denied the motion, holding that the Coalition should have pursued discovery but also that even the additional evidence of racial animus wouldn’t change the result.

On appeal, the First Circuit recognized that “the Plan was chosen precisely to alter racial demographics.” But it held that the Coalition could not establish that the plan had a disparate impact on white and Asian students because those groups still earned more seats than their share of the overall population would suggest. The panel also drew a distinction between the intent to remake the racial demographics of the schools and an intent specifically to harm white and Asian students.

Following Justice Alito’s dissent from denial of Supreme Court review in Coalition for TJ v. Fairfax County School Board (joined by Justice Thomas), counsel for the Coalition filed a cert petition in this case that focused on disparate impact. Specifically, both the First Circuit here and the Fourth Circuit in TJ held that a challenge to facially race-neutral admissions criteria is categorically barred if the group targeted still receives at least a balanced share of the seats at the school. That goes against longstanding Supreme Court precedent that prohibits racial balancing. With a district court finding of animus, this case is teed up for the Supreme Court to flesh out what it meant in Students for Fair Admissions v. Harvard that “eliminating racial discrimination means eliminating all of it.”

MI filed a brief, joining the American Civil Rights Project and the Hamilton Lincoln Law Institute, arguing that: (1) the lower courts’ endorsement of intentional racial discrimination is untenable; (2) strict judicial scrutiny applies to intentionally discriminatory racial balancing regardless of disparate impact; (3) the Supreme Court’s precedents establish that race-balancing cannot ever satisfy strict scrutiny; and (4) the First Circuit’s decision—like the Fourth Circuit’s—misconstrued the Supreme Court’s “narrow tailoring” jurisprudence as endorsing race-balancing through nominally race-neutral means.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Dan Morenoff is an adjunct fellow at the Manhattan Institute and the executive director at the American Civil Rights Project.

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