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Mass. case raises race Boston public school appeals ruling against racial preferences 'Give us clear direction' Some fear high court could end all use of race in admissions


WASHINGTON -- When classes reopen next week at the nation's oldest public school, the Boston Latin School, the entry of one new student -- under court order -- will set the stage for a major Supreme Court case on affirmative action.

The sophomore class of the prestigious 364-year-old high school will include 15-year-old Sarah P. Wessmann, a white student from the city's Dorchester section. She had wanted to enter as a freshman but lost out then because of a race-based admissions policy.

That policy has now been struck down by a federal appeals court, which ordered Sarah's prompt admission. For now, and for the first time in a quarter-century, Boston Latin will admit new students solely on the basis of academic merit: their results on a competitive entry exam and their earlier grade averages.

But the city school board -- the Boston School Committee -- voted 4-1 in December to take the dispute to the Supreme Court, offering the justices their first-ever case on affirmative action for admissions to high school or elementary school.

"The issue is so important that we must seek the final judgment of the highest court to give us clear direction," said Thomas W. Payzant, the city school superintendent. "This is a threshold case with respect to affirmative action and public schools."

The one member of the school committee who abstained from the vote to appeal to the Supreme Court did so out of fear that the court might use the case to strike down any use of race in selecting students for public schools. Others have voiced similar fears. Some warn that the Boston Latin case threatens the use of "magnet schools," which customarily offer specialized education and are often set up expressly to encourage racially balanced student bodies.

The outcome of the case may affect other lawsuits now pending -- in Montgomery County and in Arlington, Va., for example -- over the use of racial preferences for entry into specialized public schools or education programs.

The case could also give the justices another chance to examine an issue that seems to interest them keenly: the constitutionality of basing public policy decisions on race, when the intent is not to remedy past discrimination but rather to promote diversity in society.

Two lower federal courts have now found that diversity cannot be used to justify race-based government programs. Others have said the issue is in doubt.

Nearly 21 years ago, in the case of Allan Bakke, a California medical student, the Supreme Court allowed the use of racial diversity as a rationale for college admissions. But some judges believe that the precedent has been weakened by more recent rulings that show the justices to be far more skeptical about race as a decisive factor in public policy-making.

A little over a year ago, the court was preparing to hear a dispute over racial diversity -- a test case on an affirmative action policy for high school teacher layoffs. But that case, from Piscataway, N.J., was settled out of court. Since then, no significant racial diversity cases have gone to the court.

Within weeks, the Boston Latin case will arrive there.

Parents from all over Boston eagerly seek to get their children into Boston Latin, one of the city's three public "exam schools" (all applicants must compete in an entry exam) and clearly the most desired one.

Founded in 1635, it numbers many famous Americans among its alumni, including Ralph Waldo Emerson and Cotton Mather. Benjamin Franklin attended but did not graduate from Boston Latin.

The parent who perhaps has fought the hardest to get a student into the school despite the racial preference is Michael C. McLaughlin, a Boston lawyer. He has now succeeded twice with lawsuits that challenge minority admissions policies.

His daughter, Julia, was admitted under court order in 1996, after McLaughlin sued to block an earlier version of the policy that guaranteed a minimum 35 percent minority enrollment. Now, McLaughlin has just won the case for Sarah Wessmann, persuading the appeals court to strike down a new goal that gave minorities assured access to up to half the available seats.

His victory led to her admission this month and to at least a temporary end to race-based admissions at Boston Latin.

McLaughlin, who did not return several telephone calls, has said he is confident that the court will find no error in the lower-court decision requiring Sarah's admission.

The Wessmann family declined to be interviewed about her case.

In 1997, when the ninth-grade class at Boston Latin was being chosen, there were 90 seats available. Sarah's score, based on her entry exam and her grades at other schools, put her 91st on the list.

Under the policy then in use, the top 45 seats were filled based solely on composite scores. The other 45 seats were chosen under the race-based part of the admissions policy, which seeks to assure that more minorities are admitted even if their scores are lower than some who would otherwise qualify.

If scores alone had been considered, Sarah and other white students would have gained admission as part of the second 45, after some students had dropped out of competition. But the racial preferences gave the seats they would have had to black and Hispanic students -- a result that led Sarah, joined by her parents, to go to court.

The 1st U.S. Circuit Court of Appeals, based in Boston, nullified the racial preference in November.

Even if the Supreme Court's Bakke decision still stands as a precedent in favor of racial diversity, the appeals court said, the Boston Latin policy is only "a mechanism for racial balancing -- and placing our imprimatur on racial balancing risks setting a precedent that is both dangerous to our democratic ideals and almost always constitutionally forbidden."

Under such an approach, the appeals court said, the policy will eventually exclude a candidate solely because of his or her race. "That happened to Sarah Wessmann," it noted.

Pub Date: 1/02/99


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