The U.S. Supreme Court on Monday, over a strong dissent by two justices, declined to take up a case about a school district鈥檚 facially race-neutral admissions policy for selective magnet high schools that sought to increase the schools鈥� racial, socioeconomic, and geographic diversity.
In a case involving Boston鈥檚 three competitive 鈥渆xam鈥� schools, the court declined to disturb a ruling last year by , in Boston, that the coalition of parents and students challenging the admissions plan that was in effect for one school year had failed to show that it had discriminatory effects on white and Asian American applicants and thus did not violate the 14th Amendment鈥檚 equal-protection clause.
The court鈥檚 action marked the second time this year that the justices declined to review diversity policies in K-12 education, which was disappointing to opponents of such policies and leaves the issue in a somewhat tenuous state for K-12 schools after the court firmly rejected affirmative action in college admissions in its landmark 2023 ruling.
Justice Samuel A. Alito Jr., in a dissent joined by Justice Clarence Thomas in , emphasized evidence that the purpose of the Boston plan was to boost Black and Hispanic enrollment and that some Boston school committee members had made racially insensitive comments towards white Bostonians as the plan was deliberated.
鈥淭he 1st Circuit rendered legally irrelevant graphic direct evidence that committee members harbored racial animus toward members of victimized racial groups,鈥� Alito wrote, adding that the committee members had explicitly worked to decrease the number of white and Asian students at the exam schools in name of 鈥渞acial equity.鈥�
鈥淭hat is racial balancing by another name and is undoubtedly unconstitutional,鈥� Alito said in the dissent.
It was the second time this year that Alito and Thomas had dissented from a refusal by the court to take up a selective K-12 admissions case. In February, the court declined to take up a challenge to the admissions plan for the Thomas Jefferson High School for Science and Technology, a highly selective K-12 magnet school in Virginia that sought to boost the racial diversity of its student body.
鈥淭he following events might sound familiar,鈥� Alito said in his Boston dissent, referencing the denial of review of the case known as as well as some similar facts.
But one fact unique to the Boston case was highlighted in a separate statement by Justice Neil M. Gorsuch.
鈥淭he difficulty, as I see it, is that Boston has replaced the challenged admissions policy,鈥� Gorsuch said.
The Boston public schools dropped the challenged admissions program in 2022 and adopted a new one for Boston Latin School, Boston Latin Academy, and John D. O鈥橞ryant School of Mathematics and Science. The new system restored entrance exams, which had been dropped during the COVID-19 pandemic, and also weighs grade-point averages and the census tracts where students live.
鈥淭he parents and students do not challenge Boston鈥檚 new policy, nor do they suggest that the city is simply biding its time, intent on reviving the old policy,鈥� Gorsuch said. 鈥淪trictly speaking, those developments may not moot this case. But, to my mind, they greatly diminish the need for our review.鈥�
But Gorsuch went on to say that the court鈥檚 denial of review should not be 鈥渕isconstrued鈥� as approval by the Supreme Court of the 1st Circuit鈥檚 decision that upheld the challenged policy for the 2021-22 school year, adding that Alito expressed 鈥渁 number of significant concerns about the 1st Circuit鈥檚 analysis, concerns I share and lower courts facing future similar cases would do well to consider.鈥�
A one-year policy that 鈥榳orked as intended鈥� to boost Black and Latino enrollment
Alito said the change in policy did not make the challenge to the 2021-22 admissions criteria moot because courts could still provide relief to some white and Asian challengers, such as ordering their admission to the exam schools.
He highlighted that under the challenged policy, Black student enrollment at the exam schools increased from 14 percent to 23 percent of the schools鈥� student population, while Latino students鈥� share of enrollment increased from 21 percent to 23 percent, while white students鈥� share decreased from 40 percent to 31 percent, and students of Asian background decreased from 21 percent of those enrolled to 18 percent.
The new policy 鈥渨orked as intended,鈥� Alito said.
鈥淲e have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance鈥� of the court鈥檚 2023 decision in , which struck down race-conscious admissions programs at Harvard and the University of North Carolina by declaring most considerations of race in education to violate the equal-protection clause, Alito said.
The Pacific Legal Foundation, which represents the Boston challengers, said in a statement that, despite the 鈥渄isappointing decision,鈥� it was committed to 鈥渃ontinue this fight.鈥� Citing active cases challenging selective admissions in New York City public schools and the Montgomery County, Md., school district, the organization said it 鈥渨ill continue to litigate this issue until every student is afforded the right to equal protection that the Constitution guarantees.鈥�
The Boston Public Schools did not respond to a request for comment.
Sonja Starr, a University of Chicago law professor who has written about and , said she was not surprised by the court鈥檚 decision not to take up the Boston case.
鈥淭he TJ case [denial] showed they don鈥檛 have an appetite to dive back into this issue this soon鈥� after the higher education decision on affirmative action, she said. 鈥淭he near-mootness of the Boston case made it a less-promising vehicle to decide some of these issues.鈥�
