US Court of Appeals takes up Boston exam school case

US Court of Appeals takes up Boston's exam school admission lawsuit.John Tlumacki

With affirmative action facing a murky future nationwide, federal judges on Wednesday peppered attorneys on both sides of a fight over Boston’s efforts to diversify its exam schools with skeptical questions, making it difficult to discern which way they may rule.

At the center of the legal dispute is a temporary admission policy that awarded exam-school seats for Fall 2021 to students with the highest GPAs by ZIP code rather than by a citywide rank order. The policy increased the percentages of Black and Latino applicants who secured admission at Boston Latin School, Boston Latin Academy, and the O’Bryant School of Math and Science, while rates for Asian-American and white applicants declined.

During the nearly one-hour hearing at the US Court of Appeals in Boston, Christopher Kieser, an attorney representing a group of Asian and white parents who filed the lawsuit, argued the School Committee was motivated by racial balancing in adopting the ZIP code plan. That, he said, ultimately led to an uneven cut off in GPAs that enabled students in some ZIP codes to get in with lower scores than in other ZIP codes.

“Three of the School Committee members made their attempt even more obvious by making racially insensitive statements as the School Committee was considering the ZIP code quota,” Kieser said.

As evidence, he noted when the School Committee approved the policy in October 2020 the chairman was caught on a hot microphone mocking the names of speakers that sounded like they were of Asian descent, while two other members exchanged text messages disparaging white people from West Roxbury.

Those text messages, withheld by Boston school officials for months, came to light after a district court judge upheld the temporary admission policy in April 2021. The appeals court then rejected an injunction request two weeks later by the parent group, the Boston Parent Coalition for Academic Excellence, to halt admissions and indicated the appeal would likely be unsuccessful.

But Judge William J. Kayatta Jr., cast doubts on the significance of the additional text messages.

“Before you got those text messages, wasn’t it also clear from the record as a whole, the primary driving force behind this was to try to reduce perceived underrepresentation of some racial groups and ... therefore that would lower the representation of others,” he said.

The legal fight comes as a shift to the right on the US Supreme Court is increasingly putting the future of affirmative action in doubt. The high court is currently considering two cases involving race-conscious admissions programs at Harvard University and the University of North Carolina, which could have ripple effects for similar efforts at K-12 schools.

Two months ago, the Supreme Court’s conservative majority questioned the benefits of each university’s admissions programs, raising the specter they were preparing to rule them unlawful.

In Boston, the exam school case is being considered by two judges nominated by former president Barack Obama, Kayatta and Ojetta Rogeriee Thompson, and a third nominated by former president G.W. Bush, Jeffrey R. Howard.

Kayatta brought up the Supreme Court case while questioning Kieser, noting it was debating “whether you can use racial identity to increase diversity in an educational institution.”

“You seem to be going a step beyond that. You seem to be saying, you can’t use non-racial facially neutral factors if your purpose is to increase diversity,” said Kayatta.

Kayatta was referring to other methods educational institutions have used instead of race to increase diversity, such as when public universities guarantee admission to a certain percentage of top-performing seniors from each high school in their states.

Kieser, citing case law, responded by saying, “you cannot use ... facially neutral criteria in order to achieve racial discrimination.”

Kieser urged the court to order Boston Public Schools to admit five applicants who would have secured seats under the old policy, which relied on a citywide rank order. The students didn’t gain admission under the temporary policy because they lived in ZIP codes where exam school demand was high and consequently required a higher GPA to get in than in other ZIP codes.

The case could have other implications for BPS. Although it is no longer using ZIP code allocations, a court ruling against that policy could draw into question the legality of its new admission policy, which also relies on distributing seats by geographic areas. The new policy divides applicants into eight tiers based on the socio-economic characteristics of where they live.

BPS has repeatedly argued the temporary plan was race neutral and didn’t violate the equal protection clause under the US Constitution because it “did not result in disparate impact and was not motivated by a discriminatory intent or purpose.” White and Asian students also continue to hold exam-school seats at higher rates than their share of the district’s overall student population.

Kay Hodge, Boston’s attorney, reiterated BPS’s contention the case is moot because the temporary policy has expired and questioned whether the five students had legal standing. She said school officials don’t know who they are because they weren’t named in an affidavit or whether they were part of the original case.

The judges scrutinized Hodge’s claims.

“The allegation is that they had ... a GPA that would have admitted them,” Thompson said. “Do we need to know more than that? Do we need to know who specifically?”

Hodge responded by saying the temporary policy stood apart from the old admission system in other ways beyond ZIP codes. Because of the pandemic, the temporary policy didn’t use test scores to admit students, a huge factor in admission decisions previously.

“We have never had a plan in the city of Boston for acceptance to the exam schools that was solely based upon GPA citywide,” Hodge said.

Kayatta zeroed in on Hodge’s request for dismissal.

“Suppose the plan was unconstitutional ... but five of their members were excluded because of an unconstitutional plan,” Kayatta said. “Would that be moot?”