As matters currently stand, the Supreme Court has refused to extend the diversity rationale approved in Bakke v. The Regents of the University of California (1978) and Grutter v. Bollinger (2003) to allow the use of race as an admissions criterion in K-12 education.  Only one such case has reached it, Parents Involved in Community Schools v. Seattle School District No. 1 (2007).  In a narrow 5-4 ruling, the majority refused to rule on the diversity issue, stressing no need to do so since the two admissions policies before it were not narrowly tailored, with race as the dispositive admissions consideration, rather than simply a “plus” factor in the decision-making process.

Two potentially important K-12 cases have been working their way through the judicial pipeline in response to school systems that have adopted admissions policies that seek to promote student body diversity.  One, Coalition for TJ v, Fairfax County School Board, is a March 10, 2021 challenge to a revised admissions system for the Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia, generally regarded as one of the best in the country.   As we note in our discussion of that case, it is in the very early stages of litigation and there have been no decisions on the merits as of yet.

The second focuses on what are known as the “Exam Schools” in Boston, Massachusetts: Boston Latin School; Boston Latin Academy; and the John D. O’Brien School of Mathematics and Science.  Applications for these schools routinely far exceed the number of slots available and students were selected based on a combination of grade point averages and scores on standardized tests.  In the summer of 2019, the Boston Public Schools administration undertook a review informed by concerns about a lack of student body diversity in the Exam Schools and eventually adopted a revised approach that would use a combination of academic achievement, zip code, and family income to allocate seats.

The policy was facially race-neutral, but all sides agree it would increase Black and Hispanic enrollment at the expense of Asian-Americans and whites, by the incorporation of  non-academic admissions factors that strongly correlate with race.  A group of concerned parents (the Coalition) filed a complaint on February 26, 2021 in the District Court of Massachusetts, arguing that the new policy violated the Equal Protection Clause of the Fourteenth Amendment.  Tracking the approach taken in the Harvard College and University of North Carolina cases, the parents allege that the policy would have an adverse impact on White and Asian-American students.

On April 15, 2021, the Court held that the policy was “rationally related” to “proper educational goals,” meeting a relaxed standard appropriate for evaluating race-neutral actions.  It stressed that the proposal would use only what are regarded as traditional and appropriate criteria and that its decision involved only its application for the 2021-2022 school year.   

The Coalition appealed, requesting an injunction to bar implementation of the policy.  The Court of Appeals denied that request on April 28, 2021, agreeing with the District Court that “a discriminatory purpose did not motivate the Plan’s adoption.”  The plan would use “race-neutral selection criteria – such as zip code and family income – that are correlated with race and that their application would likely promote diversity.”  That did not, the panel held, “automatically require strict scrutiny” and the use of these “neutral criteria” was constitutional.