Calling It For What It Is: Discrimination By Proxy Is Still Discrimination

The Fourteenth Amendment’s Equal Protection Clause forbids the government from using immutable characteristics—like race—to discriminate against individuals. Even so, governments have taken to using sneaky tactics that, while avoiding explicit racial classifications, are no less than discrimination by proxy. Nowhere is this seen more than in the realm of publicly funded education.

Discrimination by any other name

Boston, Massachusetts, is home to three “exam schools” which admitted students based on Independent School Entrance Examination (ISEE) scores and their academic performance. The competitive admission standards have helped solidify these three 7th-12th grade schools—Boston Latin School, Boston Latin Academy, and John D. O’Bryant School of Mathematics and Science—as among the most prestigious academic institutions in the country.

Because the exam schools are public schools and thus tuition-free, students from all backgrounds can attend as long as they earn a spot—or at least, that used to be the case. Over the past five years, the merit-based system that allowed these schools and students to thrive has moved toward one that judges students not on their own academic achievements but on their race.

How could this be, since the Fourteenth Amendment safeguards against this exact type of discrimination? Fueled by demands for equity after the death of George Floyd, Boston Public Schools (BPS) found a creative way to covertly discriminate. A BPS working group was created to overhaul the old process, In its place, they created a system that allotted a certain number of admissions slots for each ZIP Code in Boston. But the ZIP Code rule was nothing more than an attempt to racially balance the school. And the results spoke for themselves.

In fall 2021, enrollment across the three schools was about 5,587 students, and white student numbers dropped from 40% to 31% while the Asian American count fell from 21% to 18%.

Boston Parents Coalition, represented by Pacific Legal Foundation, challenged the new process in court. But the case was dismissed by both a federal trial court and the First Circuit, the latter of which said the Coalition couldn’t prove the policy’s disparate—or disproportionate—impact on white and Asian American students. To prove this, the First Circuit said that the Coalition would have to show that the share of the white and Asian applicants admitted was below their proportion of the applicant pool—remember this point, as it will play an important role later.

The Supreme Court declined to review the case, but Justice Samuel Alito gave a scorching dissent, saying, “We have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action.”

Even as that case was winding its way through the courts, Boston Public Schools was already in the process of tweaking the ZIP Code quota, trying to maximize racial balancing while avoiding a legal challenge. After reconvening the Working Group as a task force, BPS tweaked the plan, hoping they could continue their racial balancing without pushback.

Instead of ZIP Codes, BPS now separated the city into eight tiers where each tier received the same number of seats. But here’s the catch: Not all tiers were created equal. Tier 8 (where the majority of white applicants ended up) students hoping to get into Boston Latin School would have to have a 99.1 composite score, while those in Tier 3 needed just a 73.5. Composite score considers both GPA and score on the MAP Growth assessment, but many of these scores of non-Tier 8 students were inflated by “bonus points” given to students who attended fifth grade at a school that was at least 40% economically disadvantaged.

The Tier System created a two-track admissions process in which Tier 8 students—most of whom were white—had to compete only against each other for coveted exam School seats. Unsurprisingly, Tier 8 had the lowest acceptance rate, and the number of white students admitted fell by a quarter. Parents who had worked tirelessly to help their students achieve academic excellence were being punished for living in certain neighborhoods. One mother was shocked when her son, who had won awards for academic excellence, was denied entry. Another mother couldn’t believe that her academically advanced child was being treated as part of a “privileged” group when they lived in a poor neighborhood that even lacked modern plumbing.

The kicker was that now, the proportion of admitted students who were white had fallen even below the white share of the applicant pool. This is what the First Circuit had said was necessary to demonstrate disparate impact. Combined with the School Committee’s clear intent to racially balance the schools, the Coalition and Pacific Legal Foundation had all they needed to head back to court to challenge the Tier System.

But even with such blatant evidence staring the public in the face, concerned parents across the country have found it difficult to challenge this discrimination by proxy.

Disappointment and vindication

In early 2024, the Coalition for TJ—another parent group represented by Pacific Legal Foundation, this one in Virginia—received devastating news: The Supreme Court would not hear their case challenging the Fairfax County School Board’s discriminatory admissions policy. Like BPS, after George Floyd, the School Board had convened in 2020 to discuss changes to the admissions process for Thomas Jefferson High School for Science and Technology (TJ)—one of the top public high schools in the country.

When college admissions boards see “TJ” on an application, they know these students have already proven their academic excellence—if they hadn’t, they wouldn’t have been able to make it through the school’s infamously hard application process. Students work for years to pass the rigorous test and show they have the academic chops required to keep up with the advanced course load.

But as the push for equity rose, many on the School Board believed they needed to correct what they saw as the “under-representation of black and Hispanic students” by directly targeting and reducing the number of Asian students accepted to TJ.

The School Board unanimously voted to eliminate standardized testing from the TJ admissions process and implement a new “holistic” system that would award applicants points for “Experience Factors,” like attending an underrepresented middle school and being eligible for a free or reduced-price lunch.

Coalition for TJ—a group of concerned TJ parents, students, and alumni—knew that this was an attempt to racially engineer the student body to the detriment of Asian students. This wasn’t a concern rooted in paranoia. Text messages between board members, found during the discovery process, revealed that board members knew the policy was being fueled in part by anti-Asian sentiment. And if that wasn’t damning enough, after the new policy went into place, the share of Asian American students dropped from 73% to 54%.

After an initial win for Coalition for TJ, the case lost on appeal. When the Supreme Court made its heartbreaking decision not to take the case, it seemed the public had been duped by discrimination by proxy once again. Justice Alito, along with Justice Clarence Thomas, dissented, saying the Supreme Court “should wipe the decision off the books.”

Just over a year later, the story took an interesting turn.

In May, the U.S. Department of Education’s Office for Civil Rights opened a Title VI investigation into Thomas Jefferson High School’s admissions policy—which came after a two-year investigation by Virginia Attorney General Jason Miyares. Like Coalition for TJ, Miyares had concerns that TJ’s policy had been created to intentionally suppress the enrollment of Asian students.

Coalition for TJ may not have won in court, but the new investigation vindicated their years-long fight against discrimination. And the fight for true equality in public education is far from over.

In New York, PLF is helping local parents and parent-based groups challenge the state’s Science and Technology Entry Program (STEP), which provides phenomenal college prep resources to only some students.

To qualify for STEP, a student much be economically disadvantaged or belong to a minority group historically underrepresented in STEM. STEP defines underrepresented minorities as only black, Hispanic, Native American, or Alaskan Native. Even if your family is barely scraping the top of the poverty line, the program is off limits unless you belong to one of these groups. Government programs that assign benefits or burdens based on a student’s race violate the constitutional promise of equality before the law.

The NY case and the Boston Parents Coalition’s case are picking up the torch and continuing Coalition for TJ’s fight against discrimination. And there are still so many reasons to have hope.

Eliminating all racial discrimination

In July 2023, the Supreme Court delivered its landmark ruling in Students for Fair Admissions v. Harvard, declaring that publicly funded colleges and universities could not use racial preferences in their admissions process. While the ruling did not address K-12 education, it was a major step in eliminating discrimination in education.

Whether it’s admission to college or a special public school, a student should be considered on their individual merits and not on the basis of race or any other immutable characteristic. Whether done explicitly or by proxy, racial discrimination in all forms is unconstitutional and immoral. As Chief Justice John Roberts, wrote in the Students for Fair Admissions decision, “Eliminating racial discrimination means eliminating all of it.”