The Supreme Court declined to hear Boston Parent Coalition for Academic Excellence Corp. v. The School Committee for the City of Boston (Boston Parent) on Monday. The court's refusal to take up the case is bad news because it leaves unresolved a circuit split on what constitutes a violation of the 14th Amendment's Equal Protection Clause.
The Boston Parent Coalition sued the city of Boston in February 2021 for changes to the admissions process for Boston's prestigious "exam schools," which they allege were intended to decrease the number of admitted white and Asian students. These allegations are evidenced by the Exam School Admissions Criteria Working Group's "Projected Shift" chart, which accurately predicted the exam schools' altered racial composition, and by a member of the group telling the Boston School Committee that the new system would "allow our exam schools to more closely reflect the racial and economic makeup of Boston's kids," per PLF's opening brief.
Evidence of the city's racial animus is referenced in Justice Samuel Alito's dissent: School Committee Chairman Michael Loconto mocked Asian names during public comments over Zoom; Vice-Chairman Alexandra Oliver-Dávila texted fellow committee member Dr. Lorna Rivera that she "hate[s] WR," referring to the predominantly white neighborhood of West Roxbury; and Dr. Rivera replied to Oliver-Dávila that she's "[s]ick of westie whites."
Not only was the Committee animated by racial discrimination, but it also produced a racially disparate impact. In the fall following the admissions policy change, the percentage of white and Asian students in seventh- and ninth-grade classes dropped from 33 percent and 21 percent to 24 percent and 16 percent, respectively, according to the Pacific Legal Foundation. However, because these percentages were still above the white and Asian percentage of Boston's student population, the 1st Circuit Court of Appeals ruled that there was "no evidence of a relevant disparate impact," as required by Village of Arlington Heights (Arlington Heights) v. Metropolitan Housing Development Corporation to establish an Equal Protection claim.
In Arlington Heights, the Supreme Court held that "official action is not invalid solely because it results in a racially disproportionate effect." The Court reiterated that, in addition to the racially disparate impact of an official, "proof of discriminatory intent is required to show a violation of the Equal Protection Clause."
While the 1st Circuit's interpretation of Arlington Heights and disparate impact is implausible, it's not unprecedented. In his dissent from the Supreme Court's refusal to hear Boston Parent, Alito explained that the 4th Circuit "concluded that a facially race-neutral admission policy caused no disparate impact on Asian students because they 'were still overrepresented' compared to their population level" in Coalition for TJ (TJ) v. Fairfax County School Board.
Contrary to the 4th Circuit, the relevant comparison is not between a group's share of admissions offers and its share of the population, but that group's share of admissions offers before and after the policy change. Alito emphasizes the absurdity of the 4th Circuit's comparison groups in his dissent to the Supreme Court's refusal to hear TJ, characterizing it as "effectively licens[ing] official actors to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups."
Not all Circuits have misinterpreted Arlington Heights. The 2nd Circuit recently ruled that an aggregate disparate impact is unnecessary to trigger strict scrutiny under the 14th Amendment: "When an individual of a certain race is…adversely affected by a facially neutral law or policy that is racially motivated, a viable equal protection claim exists even if the individual's racial group did not suffer an aggregate disparate impact from that law or policy."
The 1st and 4th Circuit split from the 2nd Circuit not only on what constitutes the relevant comparison groups to determine disparate impact but also on whether the impact needs to be suffered in aggregate or by an individual. While those residing in the 2nd Circuit's jurisdiction are protected from facially neutral state actions motivated by unfair discrimination, those in the 1st and 4th Circuits are not.
The Supreme Court's refusal to hear Boston Parent is a missed opportunity to affirm the 2nd Circuit's interpretation of Arlington Heights to protect individuals—those to whom the Constitution applies—from de jure discrimination.
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