A federal appeals court has refused to block the Boston school system from sending out acceptance letters for its selective 鈥渆xam schools鈥� under new admissions criteria for next academic year, ruling that the plan鈥檚 use of a socioeconomic measure to achieve greater racial diversity in those schools is likely constitutional.
The decision by a three-judge panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, denied a request for an injunction by a group representing White and Asian American families.
鈥淸T]here is no likely controlling reason why one cannot prefer to use facially neutral and otherwise valid admissions criteria that cause underrepresented races to be less underrepresented,鈥� said the unanimous April 28 opinion in .
The coalition challenged the admissions program for Boston Latin School, Boston Latin Academy, and John D. O鈥橞ryant School of Mathematics and Science. The schools are highly selective, and for the last 20 years, admission has been based on a test, grade-point averages in mathematics and English-language arts, and student preferences.
But with disruptions caused by the COVID-19 pandemic, the Boston school committee established a working group to come up with an alternative admissions plan for the 2021-22 school year. Under the plan, grade-point average and other academic are still criteria, but students from low-income ZIP codes (based on income for families with children under 18) get a preference in filling 80 percent of the slots.
Among the goals of the plan is to increase racial, socioeconomic, and geographic diversity within the exam schools, though the plan did not explicitly use race as a factor.
The coalition challenged the plan under the 14th Amendment鈥檚 equal-protection clause (and a state constitutional provision), arguing that it was adopted with a racially discriminatory purpose. The group calls for admissions based on grade-point average only, which would likely boost White and Asian American students and result in fewer admissions of Black and Latinx students, court papers say.
A federal district court found that the use of socioeconomic criteria based on ZIP codes was 鈥渄evoid of any anchor to race.鈥�
As part of its appeal to the 1st Circuit court, the coalition sought the injunction to block acceptance letters based on the plan from going out. The appeals court denied the request, saying the plaintiffs themselves had delayed matters by waiting more than four months after the plan was adopted to file suit, and that the school system needed to proceed with admissions for next year. (The Boston school system鈥檚 website , the same day as the decision.)
The appeals court鈥檚 ruling was not a final one on the merits, but it said the admissions plan was likely to be upheld under precedents that include now-retired U.S. Supreme Court Justice Anthony M. Kennedy鈥檚 concurrence in .
In that 2007 decision, Chief Justice John G. Roberts Jr. wrote a plurality opinion and Kennedy joined in the judgment that two school districts could not voluntarily adopt race-conscious plans for assigning students to schools.
Kennedy, in a concurrence that many lower courts have treated as the controlling opinion in Parents Involved, said school districts may pursue diversity without engaging in individual racial classification by drawing 鈥渁ttendance zones with general recognition of the demographics of neighborhoods.鈥�
The 1st Circuit court panel in the Boston decision said, 鈥淥ne can readily see why a school system would prefer to curry citywide support for high-profile, pace-setting schools. And one can easily see why selective schools might favor students who achieve academic success without the resources available to those who are capable of paying for summer schooling, tutoring, and the like.鈥�
Boston school officials 鈥渆xpressed a variety of concerns regarding how best to award seats in the Exam Schools,鈥� the court said. 鈥淏ut the means they chose were race-neutral and apt.鈥�
The decision comes as admissions plans at selective K-12 schools鈥攅ither race-conscious or race-neutral鈥攁re under legal scrutiny. A lawsuit was filed recently challenging a race-conscious admissions plan for an elite math and science high school in Fairfax County, Va. And a lawsuit was filed in March challenging the racial effects of the New York City school system鈥檚 program of admissions for its selective schools.
