Boston Globe: Appeals court upholds legality of Boston’s temporary exam school admission policy
By James Vaznis Globe Staff
Boston Public Schools legally admitted students to the city’s three exam schools two years ago under a temporary admissions policy that aimed to increase diversity by distributing seats by grades and ZIP codes, according to a ruling by the US Court of Appeals for the First Circuit.
“There is nothing constitutionally impermissible about a school district including racial diversity as a consideration and goal in the enactment of a facially neutral plan,” the justices wrote in their decision Tuesday.
A group of Asian American and white parents known as the Boston Parent Coalition for Academic Excellence filed the lawsuit two years ago, arguing that the one-year temporary policy discriminated against Asian American and white students seeking admission to Boston Latin School, Boston Latin Academy, and the O’Bryant School of Math and Science.
The parents’ group sought to have five students admitted who had been rejected under the temporary policy, arguing that the students would have secured seats under a policy used before the pandemic that admitted students citywide based on grades and test scores. But the justices disagreed.
The ruling is widely viewed by supporters of affirmative action as a victory for their cause at a time when such policies have been under legal attack. Six months ago, the US Supreme Court struck down affirmative action in admissions policies at Harvard University and the University of North Carolina.
“School districts not only can but should take affirmative steps to ensure that educational opportunities are equally available to all,” Oren Sellstrom, litigation director at Lawyers for Civil Rights, said in a statement. “Our schools are stronger when classrooms are diverse and students from a wide range of backgrounds can learn from each other.”
The plaintiffs plan to file an appeal with the Supreme Court, according to their attorney, Christopher Kieser, of the Pacific Legal Foundation, who expressed disappointment with the ruling.
“The First Circuit’s decision in this case allows public school systems to use proxies to discriminate based on race,” he said in a statement, noting that it runs counter to the Supreme Court ruling.
His law firm already has another case before the Supreme Court involving Thomas Jefferson High School for Science & Technology, a public school in Virginia that also has a selective admissions policy that raises similar questions about affirmative action.
BPS declined to comment on the ruling.
Boston is no longer using the temporary plan. But many civil rights advocates were worried that a negative ruling by the federal appeals court could have ramifications on BPS’ new admissions policy because it also relies on geographic data in doling out seats.
Under the new policy, applicants are divided into eight tiers that consider the socioeconomic characteristics of where the students live in an effort to boost diversity. Admission decisions are then based on grades and test scores within each of those tiers.
Both the temporary and permanent policies have increased the portion of Black and Latino applicants gaining admission to the exam schools, while decreasing the number of white and Asian American applicants who got in.
Several Asian American organizations have supported the changes in BPS’s exam school admissions policies and were pleased by the appeals court’s decision.
“Asian Americans recognize that equity in education only comes when Black and Latino communities also have meaningful access and opportunities,” Bethany Li of the Asian American Legal Defense and Education Fund said in a statement. “Public education benefits from students of all backgrounds.”
The plaintiffs, however, had argued that BPS intentionally designed the temporary policy to discriminate against Asian American and white applicants and that the School Committee even carried racial animus against the two groups.
On the night the School Committee approved the temporary policy in October 2020, the chairman at the time was caught on a hot microphone mocking public speakers who had Asian-sounding names.
Leaked text messages between two School Committee members later revealed they made racially insensitive remarks about white parents from West Roxbury on the night they approved the temporary admission policy.
Those text messages were never entered into the court record during the original district court case challenging the exam schools admission policy, even though other text messages from the night of the committee vote had been submitted as evidence. The plaintiffs argued that BPS intentionally withheld the messages to make its defense look better, but school attorneys said it was merely an oversight.
The omission angered the federal district court judge who issued the original ruling in the case, and he withdrew his written opinion. The overarching decision upholding the policy remained in place.
“As with many education access battles this continues to be a long road, and we’ve endured both personal and organizational attacks in response to this work, so I am grateful for the affirmation we received from both the lower court and 1st Circuit,” said Tanisha Sullivan, president of the Boston chapter of the NAACP, who co-chaired the groups that developed the current and temporary exam school admissions policies.