Supreme Court ruling on affirmative action could dampen K-12 diversity efforts, experts say

BPS is fending off a lawsuit by white and Asian parents in the US First Circuit Court of Appeals for awarding exam school seats by ZIP code and grades.John Tlumacki

The Supreme Court ruling against affirmative action in college admissions could prompt leaders of K-12 school systems to reexamine programs designed for students of color while also emboldening critics to seek litigation to stop diversity efforts, education and legal experts said.

There’s also considerable risk, experts said, that some districts and critics of affirmative action will over-interpret the ruling, which could lead to the unnecessary dismantling of racial equity initiatives or halt the launching of new ones out of an incorrect belief that such programs might not meet constitutional muster.

The ruling late last month arrived as districts across Massachusetts are encountering heated resistance to equity policies, which has spurred a spate of legal actions but also drawn support from those who value more opportunities to help disadvantaged students. The Supreme Court ruling could intensify those debates, analysts said.

“Resisters to diversity, equity, and inclusion efforts — meaning people who don’t want this stuff anyway — will weaponize the Supreme Court ruling on race-conscious admission practices and attempt to apply it to everything,” said Shaun Harper, a professor of education and business at the University of Southern California.

Consequently, he said, “districts will discourage themselves from doing these kinds of programs.”

Legal challenges to education initiatives in Massachusetts were far-ranging, even before the ruling. Boston Public Schools is fending off a lawsuit by white and Asian parents in the US First Circuit Court of Appeals for awarding exam school seats by ZIP code and grades under a temporary policy in 2021 in an effort to boost student diversity instead of doing a citywide rank order of test scores and grades. The case is being closely watched to see if it winds up in the Supreme Court.

Many educators and school district leaders also are on edge as the conservative Parents Defending Education, a national advocacy organization based in Washington, D.C., has raised concerns about dozens of diversity and inclusion programs in Massachusetts schools.

Last year, the group reached a settlement with Wellesley Public Schools after filing a federal lawsuit over the creation of affinity groups for students of specific races and ethnicities; the school district is now making clear the groups are open to all students. The parent organization also filed a civil rights complaint earlier this year with the US Department of Education against Milton Public Schools for offering a calculus program tailored to students of color and those from low-income households.

But the organization experienced a setback with a federal civil rights complaint in April when the Education Department determined Newton North High School didn’t violate any laws in restricting auditions for a theater production to students of color.

The Supreme Court ruling as well as the legal maneuvers at the K-12 level should serve as a warning to districts to tread with caution, specialists said.

“I do think they’re gonna have to scrub all these programs and get rid of any policies that are explicitly race-based,” said Michael Petrilli, president of the Fordham Institute, a think tank that focuses on school accountability. “Anything in public education where school districts are selecting students based on race, I think now is going to be suspect and may be determined to be illegal and unconstitutional.”

He said that could include special pullout programs and scholarships designed for students of color.

One of the most popular and oldest school integration efforts in Massachusetts is the Metco program, which enables about 3,000 Boston students each year to attend school in the suburbs. The Healey administration stressed in a statement that the program has no racial criteria for the admission process. But according to the admission policy, participating districts can holistically consider an assessment of a family’s commitment to the program and “local district goals related to the purpose of Metco,” which was designed to alleviate racial isolation in the suburbs and racial imbalance in Boston schools. Just 1 percent of Metco students are white, compared with about 15 percent in the Boston school system.

However, if K-12 diversity initiatives in the state or elsewhere in the country land in the nation’s highest court, it’s not clear whether the conservative majority would strike them down, specialists said, noting the Harvard and University of North Carolina affirmative action ruling contained important nuances.

Although the majority of justices determined Harvard and UNC lacked sufficient focus and measurable objectives to warrant using race in admission decisions, the justices added that universities can still consider an applicant’s racial background to some degree.

“Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” the justices wrote.

Such discussions could surface in an applicant’s interview or a college application essay — opportunities that high school counselors should make sure students take advantage of when applying to college, specialists said.

Iván Espinoza-Madrigal, executive director of Lawyers for Civil Rights in Boston, said the Supreme Court ruling bodes well for the exam school case because the justices didn’t fully ban the consideration of race and appear to keep the door open for race-neutral alternatives to achieve campus diversity, including recruiting applicants based on socioeconomic background or home and school ZIP codes.

“This decision is as good as we could expect,” said Espinoza-Madrigal, whose organization is serving as counsel for interveners supporting BPS in the federal lawsuit. “Affirmative action is still alive and well.”

But utilizing proxies will likely be challenged in the Supreme Court during its next session in a case involving a magnet high school in Virginia.

In that case, a group of Asian American parents is suing the Fairfax County School Board after it changed the admission policy for Thomas Jefferson High School for Science and Technology in 2020, scrapping standardized test scores in favor of guaranteeing seats for a portion of students from each middle school. Consequently, the percentage of Asian American applicants admitted dropped significantly.

Plaintiffs argue the school board intentionally changed the policy to increase the enrollment of Black and Latino students, while the school board has argued the policy is race-neutral. Those arguments also are being made in the Boston exam school case and plaintiffs in both cases are being represented by the same law firm, the Pacific Legal Foundation.

The Virginia case was briefly before the Supreme Court last year, but the court decided not to intervene and sent the case back to the Fourth Circuit Court of Appeals. In May, that court upheld the admission changes.

Plaintiffs intend to file an appeal with the Supreme Court, said Christopher Kieser, an attorney with Pacific Legal.

A decision in the Boston case is expected soon.

Other lawsuits challenging admission practices at K-12 schools could emerge in the coming years, said Nicole Neily, founder and president of Parents Defending Education.

“The Supreme Court sent a clear message . . . that discrimination in education is both immoral and unconstitutional,” Neily said in a statement. “Without a doubt affirmative action at the university level has impacted admissions policies at K-12 schools, which have adopted similar policies in an attempt to curate student bodies that reflect the preferences of elite colleges.”

Thomas Scott, executive director of the Massachusetts Association of School Superintendents, said an already intense environment around diversity, equity, and inclusion initiatives is prompting superintendents to seek legal advice.

“We are hearing from a number of superintendents who say they can’t do what they had wanted to do — they have pushed the envelope” as far as they can, he said.

Yet the Supreme Court ruling adds more pressure on school districts to address achievement gaps between Black and Latino students and their white and Asian peers so they have equal chances to get into college. That means shoring up academic programs, hiring a highly qualified teaching force that connects with students’ backgrounds, and creating specialized programs to help struggling students that can hold up under a legal challenge, specialists said.

“Right now, I would say that any supporters of race-conscious equity policies have to be really careful in how they pursue their goals because this court is setting a different kind of standard for how those kinds of policies will be scrutinized,” said Leslie Allen Williams, a lecturer at Teachers College at Columbia University who specializes in race, diversity, and legal issues in education.

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