Racial policy lawsuit is ended; Boston schools won't take preference case to Supreme Court; Rights groups feared result


WASHINGTON -- For the second time in just over a year, civil rights groups that feared losing a major affirmative action case in the Supreme Court have succeeded in stopping the lawsuit -- this time, a dispute over admissions to the nation's oldest public school, Boston Latin.

The Boston School Committee, the city's school board, changed its mind at a closed meeting Wednesday night and voted unanimously not to ask the Supreme Court to rule on the constitutionality of a race-based admissions policy at the prestigious 364-year-old high school.

The U.S. Department of Education and the National Association for the Advancement of Colored People confirmed that they and other civil rights groups had urged the school committee to forgo the appeal.

The school committee had planned to appeal this month a decision by a federal appeals court in Boston striking down that policy because of its racial preference. No appeal will be filed, and the case will end.

The student who won the case, Sarah P. Wessmann, 15, a white 10th-grader, began attending Boston Latin School last month under the appeals court order. Her grades and test scores were high enough to gain entry when she applied in 1997, but she did not get in because half the places available were set aside for minorities, even if their scores were lower than some who would otherwise qualify.

The key constitutional issue in the Boston case, as in many other lawsuits involving affirmative action plans in education, is whether school officials can continue to use the goal of diversity as a justification for racial preferences. The Boston Latin lawsuit would have been the first to put that issue before the court in a case involving a school below the college level.

Other cases on racial preferences in public schools are moving through the federal courts, including cases from Montgomery County, involving denial of a white first-grader's entry into a magnet school because of a minority preference on such transfers, and Arlington County, Va., involving a race-based admissions policy at an alternative school.

At its last term, the Supreme Court had agreed to rule on a case from Piscataway, N.J., in which a white high school teacher who had lost her job to save the position of a black teacher during a staff reduction won in an appeals court. But civil rights groups raised money to pay for settling that case out of court, so the Piscataway school board dropped its appeal in November 1997.

Boston's school superintendent, Thomas W. Payzant, said in a telephone interview yesterday "there was an emerging consensus" among groups and officials whom he and other school authorities consulted "that we would not likely prevail" in the Supreme Court.

"We might be risking a setback for Boston, but also for the rest of the nation," he said. The situation has changed, he said, since the committee voted on Dec. 2 to take the case to the Supreme Court.

Opposition to the appeal, he said, had been expressed by the Justice Department and the Department of Education, by various civil rights groups and by lawyers who have handled constitutional disputes before the Supreme Court. He said some of those groups were contacted by him and others, and some approached school officials without being asked.

Clint Bolick, vice president of the Institute for Justice, a group that is opposing racial preferences in a number of lawsuits, said the Boston School Committee vote "was a replay of Piscataway. It confirms the strategy of duck-and-run, and it underscores our view that the proponents of the diversity theory know that they are on constitutional thin ice."

Leonard C. Alkins, president of the Boston chapter of the NAACP, said, "We lobbied very vigorously -- along with the NAACP Legal Defense Fund, and other groups -- to persuade the school committee to reconsider their vote" to seek Supreme Court review. "Hopefully, we have stemmed the tide."

"We felt the case they had was a very weak case," he said in a telephone interview. "We felt the School Committee was playing a dangerous game of Russian roulette."

The Supreme Court, he contended, "has been looking for a vehicle" to "write a policy abolishing affirmative action and diversity in all schools receiving federal funds."

Alkins said the end of the Boston Latin case does not mean the end of admissions programs seeking to promote racial diversity. He said his group will seek to work with local school officials to work out a policy more likely to withstand constitutional challenge.

Payzant, the superintendent, said he was required to come up with a new admissions policy within six months. Admissions this fall, however, will be based on "straight rank order" of applying students' combined scores on entrance examinations and their grade averages.

"Our goal has not changed," he said. "We want a policy of admissions that reflects our commitment to diversity and to excellence."

Elaine Jones, head of the NAACP Legal Defense Fund, an organization separate from the NAACP, had played a significant role in the effort to put an end to the Piscataway case. She could not be reached for comment yesterday on the fund's role in the Boston case.

Roger Murphy, a spokesman for the Department of Education, said: "Yes, we did advise the school officials [in Boston] that they should not file a case with the Supreme Court on this one."

Sun staff writer Erin Texeira contributed to this article.

Pub Date: 2/05/99

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