SCOTUS declines to review Boston Covid-era admissions policy

WASHINGTON (CN) — The Supreme Court on Monday declined to review a challenge over a Boston public school’s Covid-era admissions policy, citing the high court’s landmark decision last summer to gut race-based admissions policies at Harvard. 

A parent coalition challenged the Boston School Committee’s overhauled admissions criteria to its three competitive “exam schools” that would temporarily replace standardized testing and determine placement based on students with the highest GPA in certain ZIP codes. 

The policy was only in place for the 2021-2022 school year but the coalition, the parents of five white and Asian students, said their children would have been admitted to the three schools had the policy not been implemented. They filed suit, arguing that the admissions policy, though race-neutral on its face, violated the equal protections clause.

A First Circuit Court of Appeals panel ruled against the coalition, finding that their equal protection claim failed to show the policy had a “disparate impact” on the student body; rather, it created less disparate impact by better reflecting the Boston’s racial makeup than the previous policy of ranking students by middle school grades and test scores.

Justices Samuel Alito and Clarence Thomas — a George W. Bush and George H. W. Bush appointee, respectively — dissented from the high court’s decision to deny review in the case.

“I would reject root and branch this dangerously distorted view of disparate impact,” Alito wrote in the dissent. “The court, however, fails to do so today, so I must respectfully dissent.”

Alito said Monday’s decision runs in the face of the Supreme Court’s landmark ruling in Students for Fair Admissions v. Harvard, which held that the Ivy League university’s affirmative action policies violated the equal protection clause. “We have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance of Students for Fair Admissions,” the judge said.

He found flaw with the First Circuit’s disparate impact analysis and cited a similar ruling from the Fourth Circuit that ruled out any impacts due to the overrepresentation of Asian students at a certain school.

The Bush appointee pointed to the court’s 1977 decision in Arlington Heights v. Metropolitan Housing Development Corp., where the high court determined that the only thing necessary to show disparate impact was that an admission policy reduced the chances of admission for one racial group while increasing another’s. 

Following the policy’s implementation, white students made up 31% of accepted students compared to the previous 39%. Meanwhile, 18% of accepted applicants were Asian, compared to the previous 21%. 

The policy increased the percentages of Black and Latino students at the school, with Black students increasing from 14% to 23% and Latino students increasing from 21% to 23%. 

Alito expressed concern that the lower courts interpreted disparate impact as necessary evidence to support an equal protection claim, which he noted the Supreme Court had never held, only suggesting it be possible evidence and an “important starting point.”

In a footnote, Alito said that the fact the admissions policy was no longer in effect should not moot the case because the committee could still be liable for damages for the policy’s “unconstitutional effects,” and the District of Massachusetts could order the students be admitted without requiring they reapply.

Justice Neil Gorsuch, a Donald Trump appointee, issued a separate statement saying he shared his dissenting colleagues' concerns but concurred with the high court’s denial.

“The parents and students do no challenge Boston’s new policy, nor do they suggest that the city is simply biding its time, intent on reviving the old policy,” Gorsuch wrote. “Strictly speaking, those developments may not moot this case. But, to my mind, they greatly diminish the need for our review.”

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