The Supreme Court has tossed an appeal from white and Asian parents whose kids faced discrimination in Boston's elite high schools, in a shocking reversal form the court's own landmark ruling against affirmative action.
Justices Samuel Alito and Clarence Thomas objected to the court's move, which may encourage schools to continue seeking ways to take race into account.
The Boston parents challenged admission policies at three top high schools that were superficially "race-neutral" yet motivated by a desire to lower acceptance rates for white and Asian students.
Rather than discriminate overtly, the school board used ZIP codes as a proxy for skin color.
“This issue is not going away,” the Boston Parent Coalition for Academic Excellence told the Supreme Court in its appeal in April. “Should the court turn away this case, it will only embolden government officials to continue targeting disfavored racial groups – particularly, Asian Americans.”
The court declined to take up the case because the guidelines have been dropped, Justice Neil Gorsuch explained. Even still, he acknowledged that the questions presented by the case are not necessarily "moot" and will likely come up in the future.
Two of the Supreme Court's conservatives, Samuel Alito and Clarence Thomas, said they would have taken the case.
They said that Boston's policy was clearly racially motivated, placing it at odds with the court's ban on affirmative action last year.
Alito, joined by Thomas, noted that members of the school board discussed ways to change the schools' demographics - and some board members were forced out over text messages in which they disparaged white people.
"The new policy worked as intended. Between the 2020– 2021 and 2021–2022 school years, black students increased from 14% to 23%; Latino students increased from 21% to 23%; white students decreased from 40% to 31%; and Asian students decreased from 21% to 18%," Alito said.
Despite the clear racial motive of the plan, the school board maintained that its policies were "race neutral" and justified by past "disparate impacts" on minorities. Disparate impact refers to unintentional discrimination that results from a policy that seems neutral on its face.
Of course, Boston's policies were race-neutral, but only in name - and they were intentionally discriminatory. The school tried to correct "disparate impacts" by discriminating against whites and Asians and then calling it "neutral" on paper.
Thomas and Alito called the school's view of disparate impact "dangerously distorted" as they rebuked the court for passing on an opportunity to reverse a "glaring constitutional error."
