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Published in Print: November 25, 1998, as Court Blocks Race-Based School Policy

Court Blocks Race-Based School Policy

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A federal appeals court last week struck down an affirmative action plan governing student admissions at the Boston Latin School, a prestigious public high school that has been at the center of the debate over racial preferences.

The ruling was the first by a federal appellate court stemming from a recent series of challenges to race-conscious admissions policies at selective public schools around the country.

A panel of the U.S. Court of Appeals for the 1st Circuit ruled 2-1 that there was no legal justification for the Boston district's policy of considering race for roughly half the admission slots at Boston Latin School and two other selective "exam schools" in the city.

The Boston-based appeals court overturned a federal district judge's ruling and ordered the immediate admission to Boston Latin of Sarah Wessmann, a white 10th grader who was turned down from the school last year despite scoring higher on an entrance exam than several minority students who were admitted.

The court rejected the Boston school committee's rationale that racial diversity in the schools should be maintained, especially in a city that was wracked by violent confrontations over desegregation and forced busing in the 1970s.

"We do not question the school committee's good intentions," said the Nov. 19 majority opinion by U.S. Circuit Judge Bruce M. Selya. "Here, however, the potential for harmful consequences prevents us from succumbing to good intentions."

The majority said the admissions policy failed to pass muster as a compelling governmental interest, the legal test for race-based classifications.

The dissenter, U.S. Circuit Judge Kermit Lipez, said he had doubts about the district's diversity rationale but believed the policy could be upheld as a remedy for past discrimination.

Diversity Rationale

The 1st Circuit court's ruling adds to a growing national debate over racial preferences in education. Much attention has been devoted to higher education cases such as Hopwood v. State of Texas, a 1996 federal appeals court ruling that prohibited race-based admissions at the University of Texas law school.

But an increasing number of legal challenges are aimed at stopping the use of race as a factor in public elementary and secondary magnet schools and other selective programs.

In April, a federal district judge ruled that the Arlington, Va., school system could not consider race in its magnet school admissions. That ruling is on appeal before the U.S. Court of Appeals for the 4th Circuit in Richmond, Va. Challenges to similar policies in Charlotte, N.C., and San Francisco are pending.

The 1st Circuit court's ruling is binding only in the states of Maine, Massachusetts, New Hampshire, and Rhode Island, as well as in Puerto Rico. But opponents of racial preferences hailed it as a significant development in the debate over affirmative action.

Terence J. Pell, a senior counsel with the Center for Individual Rights, a Washington organization that opposes affirmative action, said the 1st Circuit ruling sends a message to school boards across the country that race-based criteria cannot be justified on the basis of promoting diversity.

"A lot of people entertain the wish that somehow diversity might be justified in elementary and secondary schools in a way that it might not be justified at the college and professional school level," he said. "I think [the 1st Circuit court] has now said the legal standard is the same."

The Boston public schools operated for years under one of the most contentious desegregation orders in the country. And for years, the court-ordered plan included specific racial goals for Boston Latin School and the two other exam schools--Boston Latin Academy and the John D. O'Bryant School of Mathematics and Science.

In 1994, the Boston district regained control of student assignments from the federal courts, but it maintained a 35 percent set-aside for black and Hispanic student admissions at Boston Latin School.

That policy was challenged in 1995 by Julia McLaughlin, a white student who was denied admission. In 1996, the student was admitted by injunction and her constitutional challenge to the policy was dismissed as moot. Lawyer Michael C. McLaughlin, her father, also represented Sarah Wessmann in her challenge.

90 Places

The Boston school committee adopted a revised racial-preference policy, drafted by a task force, that took effect in the 1997-98 school year. The policy reserved the top half of freshman places at Boston Latin School for the applicants who ranked highest under a formula that combined entrance-exam scores and grade point average. For the bottom half of the class, racial and ethnic diversity, along with performance scores, was the basis for admission.

Ms. Wessmann ranked 91st among the applicants to Boston Latin's 1997 entering class, which was limited to 90 students. The use of the racial and ethnic guidelines resulted in the rejection of 11 white students, including Ms. Wessmann, who scored better than eight black students, three Hispanics, and one Asian-American who were admitted.

Ms. Wessmann has been attending Boston Latin Academy, but the appeals court ordered her admission to Boston Latin School "without delay."

U.S. District Judge Joseph F. Tauro had upheld the revised program in a ruling last spring.

"Diversity encourages and broadens the educational experience through encounters with others of different backgrounds, both inside and outside of the classroom," he said.

But the 1st Circuit majority rejected the diversity rationale.

"If justified in terms of group identity, the policy suggests that race or ethnic background determines how individuals think or behave," Judge Selya said. "The policy's racial/ethnic guidelines treat individuals as the product of their race, a practice that the [U.S. Supreme] Court has denounced as impermissible stereotyping."

In dissent, Judge Lipez said the school system's long history of racial segregation and lowered expectations for minority students justified upholding the racial-preference policy at the exam schools.

"The district court properly found that the Boston school committee had a strong basis in evidence for determining that the Boston Latin admissions program serves a compelling government interest in remedying the effects of prior discrimination," he said.

Boston school officials said late last week that they were considering whether to appeal the ruling to the Supreme Court.

Superintendent Thomas W. Payzant said at a news conference that he was disappointed with the result, "but I am not discouraged about the strong efforts we made."

"The court recognized the values that the school committee and I endorse--the commitment to diversity--that these are noble ends," he added. "But the court was clear that no matter how noble the ends, constitutionally impermissible means do not justify the ends."

Vol. 18, Issue 13, Pages 1,13

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