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WASHINGTON − The Supreme Court on Monday declined to decide whether Asian Americans and white students can challenge a school’s admissions policy as discriminatory even if those racial groups are receiving a balanced share of admission offers.
It was the second time this year the high court bypassed the chance to review what steps schools can take to diversify.
Justices Clarence Thomas and Samuel Alito said they would have taken the case.
Because the coronavirus pandemic prevented the admission of entrance exams at Boston Latin School and two other elite schools serving grades 7 through 12, the Boston School Committee used grades, zip codes and family income to allocate the coveted slots.
That process, which is no longer in place, resulted in a more diverse student body than in previous years.
The school argued it did not discriminate against Asian American and white students because they were still admitted at higher rates than their share of the school-age population.
The challengers, however, said that’s not how the Constitution’s guarantee of equal protection under the law works.
“Time and again this Court has emphasized that racial balancing for its own sake is per se unconstitutional,” lawyers for the challengers, who are represented by the libertarian Pacific Legal Foundation, wrote in a filing.
They argued schools are already looking to copy an admissions policy at one of the nation’s most prestigious high schools − Thomas Jefferson High School for Science & Technology in Virginia – after the Supreme Court declined earlier this year to hear a challenge to that policy. (Virginia requires the school to accept 1.5% of the eighth-grade class at each of the district’s middle schools.)
The court’s refusal to get involved again, lawyers in the Boston case said, would “send the signal that even overtly racist behavior will not stand in the way of racial balancing by proxy.”
Reverberations from court’s 2023 decision on college admissions
Schools and businesses have scrambled to react to the Supreme Court’s 2023 decision ending the use of race-conscious admissions at Harvard and the University of North Carolina.
A unanimous three-judge panel of the Boston-based 1st U.S. Circuit Court of Appeals said the city’s 2021 approach was consistent with that decision. While schools can’t consider race in order to achieve diversity, they can use “facially neutral selection criteria that tend towards the same result,” Circuit Judge William Kayatta wrote.
The challengers, Kayatta said, offered “no evidence that geography, family income, and GPA were in any way unreasonable or invalid as selection criteria for public-school admissions programs.”
Boston has since changed its admissions plan to one based on GPA, a standardized test and census tracts.
But the challengers said students who were denied admission under the 2021 policy should still be able to sue for discrimination.