Boston Latin Will Appeal Race Suit Ruling

Twenty years after the landmark University of California v. Bakke decision sanctioned race as a factor in college admissions, the Boston School Committee is bringing a case before the U.S. Supreme Court that could be to public schools what the Bakke decision was to higher education.

The Committee, the ruling board of Boston's public school system, will appeal the Nov. 19 federal court ruling declaring Boston Latin School's admissions policies unconstitutional. The policies based on test scores, grades and race were devised in consultation with Harvard Professors of Law Christopher F. Edley Jr. and Charles J. Ogletree Jr.

"Our decision [to appeal] shows that we believe in a public school setting diversity...is an important component of well-rounded educational experience," said Elizabeth Reilinger, chair of the Boston School Committee. Four of the six Committee members voted for the move Wednesday night.

She said the Committee is now seeking "clarification" from the highest level. The Committee has another two and a half months to file the appeal with the Court.

"If we're going to get a ruling, we might as well get the ruling at the ultimate decision point," Reilinger said.

Boston's courts are not the first to strike down school desegregation. Courts fromOklahoma City to San Francisco have declared thatdiscrimination in school systems is now virtuallyeradicated and no longer in need of federaloversight.

If the Supreme Court accepts the Committee'sappeal, it would be the first time the nation'shighest Constitutional defenders hear a publicschool affirmative action case. But some fear thatBoston Latin's policy is not strong enough toclinch a victory for affirmative action in thistest case.

"They made a mistake in going back to courtwith a policy much like the one that was rejectedin earlier cases," said Professor of Education andSocial Policy Gary A. Orfield. "They should not goto the Supreme Court."

And some said Harvard is not immune. A broadruling on this case could potentially shake thefoundations of Byerly Hall and admissions officeson college campuses throughout the United States.Institutions of higher education in California,Texas and other states have already been bannedfrom using affirmative action as a factor inadmissions in recent years.

Boston Latin, the most prestigious of threeselective examination schools in Boston, has beenbattling complaints about its admissions policyfor three years.

In 1995, a case brought against Boston Latin byJulia McLaughlin successfully challenged theschool's policy of setting aside 35 percent of allseats for blacks and Hispanics--no longer mandatedby the federal court after 1987.

McLauglin, a white student initially deniedadmission by Boston Latin, claimed blacks andHispanics with lower test scores and grades hadbeen admitted instead of her to fill racialquotas. The University of California v.Bakke decision had deemed racial quotasunconstitutional.

After the case, Boston Latin called on Edley,Ogletree and the consulting firm, Bain & Co., tohelp it revamp its policy.

Under the new policy enacted in December 1996,Boston Latin assigned 50 percent of the placesbased on merit determined by entrance examinationresults and grade point average. School officialsallocated the remaining places on "flexibleracial/ethnic guidelines," determined by thepercentage of each of five ethnic and racialcategories in the applicant pool.

In carrying out this policy, Boston Latindenied admission to Sarah P. Wessmann, who appliedto Boston Latin with the 1997 ninth grade class.She and her lawyer Michael C. McLaughlin, who hadargued his daughter's case several years earlier,challenged the new policy as beingunconstitutional.

Stephan A. Thernstrom, Winthrop professor ofhistory, was the expert witness for the plaintiff."This indeed was still a quota system, andstudents were still being admitted or not admittedbased on their race," Thernstrom said in aninterview last night.

McLaughlin successfully argued that this"quota" denied equal opportunity to all citizens.

"There is no case that says that racialbalancing is constitutional," McLaughlin said."The Constitution protects and ensures protectionunder the law for individuals. It will never saythere are group rights."

McLaughlin said affirmative action no longerhas a place in Boston public schools.

"Affirmative action is a term used as adescription of a policy used to remedy pastdiscrimination against blacks and Hispanics by thegovernment entity," McLaughlin said. "This hasnothing to do with discrimination against blacksor Hispanics by the school system."

In its decision, the First Circuit Court ofAppeals upheld this logic, also saying diversityshould not be limited to race.

"It cannot be said that racial balancing iseither a legitimate or necessary means ofadvancing the lofty principles recited in the[school's] policy," the decision read. "Weconclude today that the School Committee's policydoes not meet the Bakke standard and,accordingly, that the concept of `diversity'implemented by BLS [Boston Latin] does not justifya race-based classification."

And, consequently, next year, for the firsttime in 25 years, Boston Latin will admit studentsbased on test scores and grades alone. The twoother examination schools, Boston Latin Academyand John D. O'Bryant School for Mathematics andScience, will implement similar policies.

But the Boston School Committee does not intendto give up without taking its fight to theCourt--if it agrees to hear the case.

And, while Orfield applauded the Committee'sefforts to maintain diversity in the schoolsystem, he said the policy is a weak example ofaffirmative action because it does not demonstratethe diversity of criteria in admissions, includingrace, demanded by the Supreme Court in the Bakkedecision.

"It would be much better if they had a morecomplex admissions process that considered othertypes of talent," Orfield said. "They needsomething that looks more like a goal" than aquota.

He said it is a valid possibility that theconservative Supreme Court could decide not toreverse the decision.

There is "a basic denial of the fact that westill have problems of racial equality that needto be worked out," Orfield said. "That denial isled by the Supreme Court."

He added that if the Court upholds the federalcourt's decision it could "intensify racialseparation and inequality in education."

Thernstrom said he would expect the SupremeCourt to take the case. "My guess is that theywould uphold the First Circuit Court's decision inthis case," he said. "Boston civil rights groupsmay try to persuade the Boston Public Schools fromappealing this case."

But Professor of Education and Urban StudiesCharles V. Willie said he thinks the case, if itgoes before the Court, will return justice to theAmerican classroom. A country whose high courtdoes not overturn the federal court's ruling is"writing its own epitaph," Willie said.

Boston Latin is "patently unfair," Willie saidbecause it only accepts 20 percent black andHispanic students in a district that has over 70percent black and Hispanic students.

Willie said he thinks the admissions policyalready adheres to the criteria of theBakke decision.

"The system already has used a variety ofindicators, such as test scores, grades and race,"Willie said. "If race cannot be used the way it isused now, test scores should be eliminated."

No matter what experts said, school officialsclaimed statistics show their numbers ofminorities will decrease.

Of the students admitted to the seventh gradeof Boston Latin this year, 20 percent were blackor Hispanic. Last year, the percentage had slippedto 18.

"We expect numbers [of minorities] to drop[without the current system that takes race intoaccount]," said Tracey M. Lynch, spokesperson forthe Boston Public Schools.

Lynch said without the current policy only 13percent of the students this year would have beenblack or Hispanic and nine percent last year

If the Supreme Court accepts the Committee'sappeal, it would be the first time the nation'shighest Constitutional defenders hear a publicschool affirmative action case. But some fear thatBoston Latin's policy is not strong enough toclinch a victory for affirmative action in thistest case.

"They made a mistake in going back to courtwith a policy much like the one that was rejectedin earlier cases," said Professor of Education andSocial Policy Gary A. Orfield. "They should not goto the Supreme Court."

And some said Harvard is not immune. A broadruling on this case could potentially shake thefoundations of Byerly Hall and admissions officeson college campuses throughout the United States.Institutions of higher education in California,Texas and other states have already been bannedfrom using affirmative action as a factor inadmissions in recent years.

Boston Latin, the most prestigious of threeselective examination schools in Boston, has beenbattling complaints about its admissions policyfor three years.

In 1995, a case brought against Boston Latin byJulia McLaughlin successfully challenged theschool's policy of setting aside 35 percent of allseats for blacks and Hispanics--no longer mandatedby the federal court after 1987.

McLauglin, a white student initially deniedadmission by Boston Latin, claimed blacks andHispanics with lower test scores and grades hadbeen admitted instead of her to fill racialquotas. The University of California v.Bakke decision had deemed racial quotasunconstitutional.

After the case, Boston Latin called on Edley,Ogletree and the consulting firm, Bain & Co., tohelp it revamp its policy.

Under the new policy enacted in December 1996,Boston Latin assigned 50 percent of the placesbased on merit determined by entrance examinationresults and grade point average. School officialsallocated the remaining places on "flexibleracial/ethnic guidelines," determined by thepercentage of each of five ethnic and racialcategories in the applicant pool.

In carrying out this policy, Boston Latindenied admission to Sarah P. Wessmann, who appliedto Boston Latin with the 1997 ninth grade class.She and her lawyer Michael C. McLaughlin, who hadargued his daughter's case several years earlier,challenged the new policy as beingunconstitutional.

Stephan A. Thernstrom, Winthrop professor ofhistory, was the expert witness for the plaintiff."This indeed was still a quota system, andstudents were still being admitted or not admittedbased on their race," Thernstrom said in aninterview last night.

McLaughlin successfully argued that this"quota" denied equal opportunity to all citizens.

"There is no case that says that racialbalancing is constitutional," McLaughlin said."The Constitution protects and ensures protectionunder the law for individuals. It will never saythere are group rights."

McLaughlin said affirmative action no longerhas a place in Boston public schools.

"Affirmative action is a term used as adescription of a policy used to remedy pastdiscrimination against blacks and Hispanics by thegovernment entity," McLaughlin said. "This hasnothing to do with discrimination against blacksor Hispanics by the school system."

In its decision, the First Circuit Court ofAppeals upheld this logic, also saying diversityshould not be limited to race.

"It cannot be said that racial balancing iseither a legitimate or necessary means ofadvancing the lofty principles recited in the[school's] policy," the decision read. "Weconclude today that the School Committee's policydoes not meet the Bakke standard and,accordingly, that the concept of `diversity'implemented by BLS [Boston Latin] does not justifya race-based classification."

And, consequently, next year, for the firsttime in 25 years, Boston Latin will admit studentsbased on test scores and grades alone. The twoother examination schools, Boston Latin Academyand John D. O'Bryant School for Mathematics andScience, will implement similar policies.

But the Boston School Committee does not intendto give up without taking its fight to theCourt--if it agrees to hear the case.

And, while Orfield applauded the Committee'sefforts to maintain diversity in the schoolsystem, he said the policy is a weak example ofaffirmative action because it does not demonstratethe diversity of criteria in admissions, includingrace, demanded by the Supreme Court in the Bakkedecision.

"It would be much better if they had a morecomplex admissions process that considered othertypes of talent," Orfield said. "They needsomething that looks more like a goal" than aquota.

He said it is a valid possibility that theconservative Supreme Court could decide not toreverse the decision.

There is "a basic denial of the fact that westill have problems of racial equality that needto be worked out," Orfield said. "That denial isled by the Supreme Court."

He added that if the Court upholds the federalcourt's decision it could "intensify racialseparation and inequality in education."

Thernstrom said he would expect the SupremeCourt to take the case. "My guess is that theywould uphold the First Circuit Court's decision inthis case," he said. "Boston civil rights groupsmay try to persuade the Boston Public Schools fromappealing this case."

But Professor of Education and Urban StudiesCharles V. Willie said he thinks the case, if itgoes before the Court, will return justice to theAmerican classroom. A country whose high courtdoes not overturn the federal court's ruling is"writing its own epitaph," Willie said.

Boston Latin is "patently unfair," Willie saidbecause it only accepts 20 percent black andHispanic students in a district that has over 70percent black and Hispanic students.

Willie said he thinks the admissions policyalready adheres to the criteria of theBakke decision.

"The system already has used a variety ofindicators, such as test scores, grades and race,"Willie said. "If race cannot be used the way it isused now, test scores should be eliminated."

No matter what experts said, school officialsclaimed statistics show their numbers ofminorities will decrease.

Of the students admitted to the seventh gradeof Boston Latin this year, 20 percent were blackor Hispanic. Last year, the percentage had slippedto 18.

"We expect numbers [of minorities] to drop[without the current system that takes race intoaccount]," said Tracey M. Lynch, spokesperson forthe Boston Public Schools.

Lynch said without the current policy only 13percent of the students this year would have beenblack or Hispanic and nine percent last year