Boston Public Schools seeks to have exam school case tossed out of federal court, arguing ‘the case is moot’

Boston Latin SchoolPat Greenhouse/Globe Staff

Boston Public Schools has asked a federal appeals court to toss out a lawsuit challenging the legality of a temporary admission policy for the city’s three exam schools, noting the policy “is long dead,” according to the latest court filings.

“The Plan was a temporary remedy for the conditions imposed by COVID-19 and has been permanently replaced,” according to a brief that BPS submitted last Friday. “In short, there is no longer any live controversy between the parties and therefore no effectual relief the Court could award the [plaintiffs] – the case is moot.”

The legal filings in the First Circuit Court of Appeals represents BPS’ first formal response to a request that was made three months ago by a group of parents to give exam school seats to at least five students who failed to gain admission under the temporary plan.

The fate of the five students is the latest flashpoint in the ongoing legal dispute between BPS and the group of Asian and white parents who opposed the temporary policy for Fall 2021 that largely assigned seats at Boston Latin School, Boston Latin Academy, and the O’Bryant School of Math and Science by student grades and city ZIP codes instead of a citywide competition.

The temporary policy also suspended the use of an admission test, which district leaders deemed unsafe to administer in-person during the pandemic especially when classrooms remained closed. The one-year plan led to a decrease in Asian and white applicants getting in and an increase in the portion of Black and Latino applicants gaining admission.

The School Committee has since replaced the temporary policy with a new admission process that distributes seats by student grades and standardized test scores. Seats are distributed across eight socioeconomic tiers to increase the odds that students with similar means will compete against each other.

An attorney for the Pacific Legal Foundation, which is representing the parent coalition, declined comment Tuesday on BPS’ brief, noting they would be filing a formal response in court.

The legal dispute comes as a shift to the right on the US Supreme Court is raising concerns about whether cases like this one could undermine affirmative action if it lands there. A growing number of lawsuits contesting admission policies in selective public high schools are percolating across the country, while the nation’s highest court is poised to hear two cases this fall about the use of race in selective college admissions that could have ripple effects in the K-12 sector.

So far BPS has been winning its legal fight, although its public image has been considerably tarnished. A federal district court judge upheld the constitutionality of the temporary policy in April 2021. The plaintiffs, formally known as the Boston Parent Coalition for Academic Excellence, immediately filed an appeal in the First Circuit hoping to block implementation. But the judges refused to grant a temporary injunction while deciding the case, noting the appeal would unlikely succeed.

However, new evidence came to light shortly afterward, which plaintiffs argue bolster their case: text messages between two School Committee members on the night the temporary plan was approved disparaging white parents from West Roxbury that were leaked to the public in Spring 2021. BPS never submitted those text messages to the court record, which included other text messages from that night. Consequently, federal district court Judge William Young ultimately withdrew his written opinion — noting it was based on incomplete information and that “I was misled” — but kept the legal basis of the ruling intact.

The parent coalition, emboldened by the text messages, formally sought to have the five students admitted to the exam schools in their latest filings in the Appeals Court in June.

“Because these students were deprived of seats at the Exam Schools because of their race, the judgement … should be reversed,” the plaintiffs said in a briefing they filed in June. The coalition has long argued that BPS relied on Zip codes as a proxy for race in making race-based admission decisions, which BPS has denied.

BPS outright rejected the idea of admitting the students on Friday. Officials argued the request was without merit in part because the coalition has historically sought broad-based remedies, such as halting the entire admission plan, rather than interventions for specific students.

BPS also questioned giving seats to the five students, arguing that the coalition doesn’t identify them and criticizing plaintiffs for providing “only the most bare-bones, vague and anonymous information” about the students’ academic credentials.

More broadly, BPS reaffirmed its longstanding argument — upheld in federal district court — that the temporary plan was race neutral and didn’t violate the equal protection clause under the US Constitution because the temporary policy “did not result in disparate impact and was not motivated by a discriminatory intent or purpose.”

“Based on the context and the agreed-upon facts, there was compelling support for the district court’s conclusion that the Plan was ‘anchored by geography’ not race and supportive of the goal of greater ‘socioeconomic, geographic and racial diversity,’ ” according to the BPS brief. “The use of zip codes was not a proxy for race and district court’s conclusions to that effect should be affirmed.”

The Great Divide team explores educational inequality in Boston and statewide. Sign up to receive our newsletter, and send ideas and tips to [e-mail].