The Affirmative Action Fight Comes to High Schools

Y esterday, the Supreme Court declined to hear a case against Boston’s School Committee. But the underlying issue will not be going away.

Like many major cities, Boston runs special high schools for high-ability students, known there as “exam schools.” And like their counterparts elsewhere, Boston’s education officials have grown increasingly uncomfortable with the fact that Asian and white kids disproportionately test into these schools while black and Hispanic children are underrepresented.

So they did something about it. They didn’t inject race into the admissions process directly — even before the Supreme Court cracked down on affirmative action in higher ed, it was far more skeptical of the use of race in K–12 schools. Instead, they reshaped the process so that fewer white and Asian kids and more black and Hispanic kids would get in. And they were quite clear about their intentions.

Rather than being assigned through a citywide competition, most slots were now divvied up by ZIP code to ensure diversity. One member urged the committee to “be explicit about racial equity,” Ibram X. Kendi (of “antiracism” fame) talked at a meeting concerning the plan, and, in a hot-mic incident, the committee’s chairperson mocked the names of Asian citizens who spoke up at a public-comment session.

It would seem intuitive that public officials violate the Constitution’s promise of equal protection when they deliberately make a disfavored racial group worse off. But the First Circuit managed to avoid this conclusion, as did the Fourth Circuit in a very similar case involving Northern Virginia’s Thomas Jefferson High School, which the Supreme Court also declined to hear this year.

Both appeals courts pointed out that, even under the challenged policies, students from the targeted racial groups attended the schools at higher rates than students of other races. Thus the policy did not disproportionately hurt them — even if the change from the previous policy was intended to, and did, reduce their numbers.

Call it the Handicapper General’s Equal Protection Clause: It’s okay for government actors to intentionally make a specific racial group worse off, as long as that racial group still outperforms others.

Fortunately, there’s a circuit split brewing that the high court may eventually have to resolve. Faced with yet another similar case, this one involving New York’s “specialized high schools,” a Second Circuit panel has taken a far different view of the relevant legal standards.

In New York’s case, the plan backfired, and the Asian share at the selective high schools slightly rose. Nonetheless, the appeals court ruled, the plaintiffs can still win their case, so long as they show that (A) the plan was intended to harm Asians and (B) some individual Asians were excluded by the new policy, even if Asians overall were no worse off.

That case is ongoing. And the Boston case may not have been the ideal vehicle for resolving this matter anyway. As Justice Neil Gorsuch noted yesterday, the challenged plan is no longer in effect, so the case is arguably moot. (The dissent from Samuel Alito, joined by Clarence Thomas, responds that a court could still award damages, or require the admission of students who were unfairly excluded under the plan while it existed.)

Ultimately, however, the logic of the First and Fourth Circuits must not stand. Education officials have broad discretion to set and change admissions policies at selective schools, but they do not have the right to deliberately harm Americans on the basis of their race. In several cities across the country, they have openly done exactly that, and they need to be called on it.