The Boston Celtics and the Boston Red Sox are weighing in in the legal fight over Boston’s exam-school admissions process.
In a friend-of-the-court brief filed April 2, the two professional sports teams sided with the Boston School Committee. The school committee is being challenged by the Boston Parent Coalition for Academic Excellence, which is suing to stop what it calls a “zip code quota” scheme motivated by “racial animus.” The school committee insists its plan, which relies on zip codes to allocate 80 percent of the coveted seats at the city’s three exam schools, is “race neutral.” The committee also says the plan is a one-year stopgap resulting from the pandemic-related inability to administer the standardized test that is usually a part of the admissions process.
Judge William Young, a Reagan appointee, heard oral arguments in the case on April 6 over videoconference as more than 200 participants looked on or listened in. Similar legal clashes are underway in other cities too, as the pandemic disrupted admissions processes that were already under pressure for their reliance on standardized tests that critics say favor white and wealthier students over Black, Hispanic, and lower-income students (see “Exam-School Admissions Come Under Pressure amid Pandemic,” Spring 2021.)
The amicus brief includes an addendum with a statement of interest from the Red Sox. “The Boston Red Sox support the Boston Public Schools and its adoption of a new acceptance policy for the 2021-2022 school year that would provide a more equitable enrollment process to enable its three Exam Schools to better reflect the demographics of the entire city, rather than primarily its more affluent neighborhoods,” the Red Sox statement says. “Without direct access to the quality education delivered at the top three Exam Schools, our community’s Black and Latinx youth will continue to be underrepresented in the places that would best prepare them for competitive opportunities in higher education and the workforce. In addition, over-reliance on a test, for which the majority of students lack extra opportunities and financial resources to prepare and practice, causes these prestigious schools to overlook talented students who would succeed in the classroom, thrive in this environment, and enable the schools themselves to reach their full potential.”
“As we work towards achieving a more inclusive organization and evaluate our own internal practices, our work will be less impactful if major secondary schools take an overly narrow approach that limits the pipelines of talent being delivered to the local workforce,” the Red Sox statement says. “Boston’s bright future relies upon the courage to make the changes necessary to reflect and promote the incredible growing diversity of our city. We cannot expect change by continuing to draw from the same well.”
The Red Sox decision to weigh in on the Boston case comes as Major League Baseball made headlines by pulling the all-star game out of Georgia in response to that state’s legislation adjusting voting access rules, another situation that involves a contentious blend of sports, race, and politics. John Henry, the Red Sox main owner, also controls the Boston Globe, the city’s largest-circulation local newspaper. The Globe has stepped up coverage of racial inequity in education, some of which was quoted in the amicus brief. The Globe has also announced plans to partner with Boston University’s Ibram X. Kendi and his Center for Antiracism Research on and “an independent antiracist multimedia platform” to be called The Emancipator.
At the hearing, Judge Young noted pressure to get the case resolved so that exam school invitations can go out. They already have been delayed, because of the pandemic and the lawsuit, to the point where they are no longer aligned with deadlines for private school deposits. He said, though, that “fidelity to the Constitution and getting this case right are overriding principles.”
A lawyer for the Boston Parent Coalition for Academic Excellence, William Hurd, began by offering an analogy to a popular park. If the city decided to allocate access to the park by zip code to avoid overcrowding by Blacks and Latinos, the decision would be subject to “strict scrutiny,” Hurd argued.
Judge Young appeared unconvinced. “I have some problem with your analogy,” the judge said, describing the exam schools, which include Boston Latin School, as “the pride of the Boston Public School system.”
The judge also was skeptical of the claims by the school committee that the plan is entirely race-neutral. “There is some evidence here,” he said. “I would have to blind myself to conclude that people weren’t at least thinking about the racial composition of the exam school.”
“The zip code quota plan was racially motivated,” Hurd alleged. He quoted Johnson v. California, a 2005 Supreme Court case involving racially segregating inmates in California prisons, to argue that such plans are unconstitutional or at least subject to strict scrutiny even if they are race neutral or benignly motivated.
“They are thinking about equity in a very different way than the Constitution thinks about equity,” Hurd said of the school committee, citing comments in the record with Boston officials saying things like, “We must make a hard pivot away from our core value of equality.” Hurd called it “a hard pivot away from the 14th Amendment,” which guarantees equal protection under the law.
“They are trying to engineer a racial outcome,” Hurd said.
Much of the argument related to the legal question of whether the proposed plan for exam-school admissions be subject to the higher standard of “strict scrutiny”—requiring that the plan be narrowly tailored and serve a compelling interest—or whether it merely had to meet the more lenient test of having a “rational basis.”
The lawyer representing the school committee, Kay Hodge, said, “calling it the zip code quota plan doesn’t make it so.” She called it a “one-year exam school interim plan,” “something to plug the gap in the face of Covid.”
“Because of Covid, they couldn’t give the test,” Hodge said.
While she called the plan “race-neutral,” she also said that given Boston’s history, “anyone who ignored race entirely would be foolhardy.” The city’s public school enrollment, 93,647 in the fall of 1973, plummeted to 48,112 in fall 2020, in part because white families fled to the suburbs amid court-ordered busing for desegregation in the 1970s.
Hodge cited a handful of cases from appellate courts in the 5th, 6th, and 3rd U.S. circuits that either allowed school districts to take race into account in order to increase school diversity or subjected the policies to the rational basis test rather than strict scrutiny. Boston is in the 1st Circuit, so those precedents, while informative, are not binding. She also argued that “net, net, the number of Asian students do not go down,” even as under the plan Chinese-American students from Chinatown might be replaced at Boston Latin School by Vietnamese-American or Cambodian-American students from Dorchester.
Hodge defended a model called the “racial equity planning tool” as “just good thoughtful process.”
A lawyer for the Boston Branch of the NAACP, Doreen Rachal, pointed Judge Young toward a New York City case in which a court applied the rational basis test in a case about Mayor Bill de Blasio’s plans for school assignments.
Judge Young said the level of scrutiny is “the key thing.” Under the rational basis test, the school committee would likely prevail, while under strict scrutiny, it is “unclear,” he said. “My mind is open here,” he said. “My duty is to the Constitution.”
Young said there were several possible outcomes. He could find the plan unconstitutional, in which case the city would probably appeal. He could find it constitutional, in which case the plaintiff could appeal. Or he could ask for more evidence beyond an already-agreed-upon-statement of facts. If he sought more evidence, he’d have to consider whether to do so with or without an injunction preventing the plan from going forward in the meantime.
Ira Stoll is managing editor of Education Next. He has a child in the exam school applicant pool.