Boston Parent Coalition for Academic Excellence Corp. v. The School Committee

1 Cite as: 604 U. S. ____ (2024)
Statement of G
ORSUCH, J.
SUPREME COURT OF THE UNITED STATES
BOSTON PARENT COALITION FOR ACADEMIC
EXCELLENCE CORP. v. THE SCHOOL COMMITTEE
FOR THE CITY OF BOSTON,
ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 23–1137. Decided December 9, 2024
The petition for a writ of certiorari is denied.
Statement of J
USTICE GORSUCH respecting the denial of
certiorari.
A group of parents and students challenged a Boston pub-
lic school admissions policy, arguing that it defied the Four-
teenth Amendment’s Equal Protection Clause. After the
First Circuit rejected the challenge and upheld Boston’s pol-
icy, the parents and students sought review here. In their
petition for certiorari, they argue that the First Circuit mis-
applied Students for Fair Admissions, Inc. v. President and
Fellows of Harvard College, 600 U. S. 181 (2023), and other
of this Court’s precedents.
The difficulty, as I see it, is that Boston has replaced the
challenged admissions policy. See 89 F. 4th 46, 54 (CA1
2023). The parents and students do not challenge Boston’s
new policy, nor do they suggest that the city is simply bid-
ing its time, intent on reviving the old policy. Strictly
speaking, those developments may not moot this case. But,
to my mind, they greatly diminish the need for our review.
As a result, I concur in the Court’s denial of the petition for
certiorari.
Our decision today, however, should not be misconstrued.
A “denial of certiorari does not signify that the Court nec-
essarily agrees with the decision (much less the opinion) be-
low.” Kennedy v. Bremerton School Dist., 586 U. S. 1130
(2019) (A
LITO, J., statement respecting denial of certiorari).

2 BOSTON PARENT COALITION FOR ACADEMIC
EXCELLENCE CORP. v. THE SCHOOL COMMITTEE
Statement of G
ORSUCH, J.
And, in fact, JUSTICE ALITO expresses today a number of
significant concerns about the First Circuit’s analysis, con-
cerns I share and lower courts facing future similar cases
would do well to consider. See post, at 3–5 (opinion dissent-
ing from denial of certiorari).

1 Cite as: 604 U. S. ____ (2024)
A
LITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
BOSTON PARENT COALITION FOR ACADEMIC
EXCELLENCE CORP. v. THE SCHOOL COMMITTEE
FOR THE CITY OF BOSTON,
ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 23–1137. Decided December 9, 2024
JUSTICE ALITO, with whom JUSTICE THOMAS joins, dis-
senting from the denial of certiorari.
The following events might sound familiar. See Coalition
for TJ v. Fairfax Cty. School Bd., 601 U. S. ___ (2024)
(A
LITO, J., dissenting from denial of certiorari).
Boston is home to three “exam schools,” which are ranked
among the top public high schools in the United States. For
20 years, an applicant’s GPA, standardized test score, and
school preference were the sole metrics for admission to
those schools. In 2019, however, the Boston School Com-
mittee (Committee) began to consider changes to the
schools’ admission practices for the purpose of altering their
“racial/ethnic demographics.” 89 F. 4th 46, 52 (CA1 2023).
To that end, the Committee convened a working group to
recommend revised procedures for the 2021–2022 applica-
tion cycle.
After studying the issue, the working group presented a
two-step proposal to the Committee in October 2020. First,
students with the highest GPAs citywide would fill 20% of
the exam-school seats. Second, each zip code in Boston
would receive a share of the remaining 80% of seats propor-
tionate to its population of school-age children. For those
seats, the plan would rank applicants by GPA within each
zip code and give assignment priority to zip codes with
lower median household incomes. After the working group
presented this proposal, Committee member Dr. Lorna Ri-
vera expressed her approval. She emphasized that the

2 BOSTON PARENT COALITION FOR ACADEMIC
EXCELLENCE CORP. v. THE SCHOOL COMMITTEE
A
LITO, J., dissenting
Committee must “be explicit about racial equity” and “in-
creas[ing] those admissions rates, especially for Latinx and
black students.” Record 433–434.
Heeding Dr. Rivera’s call, the Committee put race front
and center when it came time to vote on the proposal sev-
eral weeks later. The meeting kicked off with a lengthy
statement from “anti-racist activist” Dr. Ibram X. Kendi,
who “urge[d the Committee] to approve this antiracist pol-
icy proposal” that would “close racial and economic gaps.”
Id., at 567, 647. Later, during the public-comment period,
the Committee called on three citizens whose names sug-
gested they were of Asian descent. Forgetting to mute
himself on Zoom, the Committee Chairperson, Michael Lo-
conto, mocked their names. See id., at 892–893. Vice-
Chairperson Alexandra Oliver-Dávila and Dr. Rivera could
hardly contain their amusement, noting over text message
they “almost laughed out loud” at Loconto’s gaffe. Id., at
2380.
That was not all Oliver-Dávila and Rivera had to say. As
leaked text messages later revealed, Oliver-Dávila told Ri-
vera that she expected “the white racists [to] start yelling
[a]t us” during the public-comment period. Id., at 2397.
She went on to note that she “hate[s] WR,” a reference to
the predominantly white West Roxbury neighborhood of
Boston. Id., at 2401. Rivera agreed, stating she too was
“[s]ick of westie whites.” Ibid. Loconto, Oliver-Dávila, and
Rivera voted to approve the working group’s proposal, but
they all later resigned as a result of their racist remarks.
The new policy worked as intended. Between the 2020–
2021 and 2021–2022 school years, black students increased
from 14% to 23%; Latino students increased from 21% to
23%; white students decreased from 40% to 31%; and Asian
students decreased from 21% to 18%.
The Boston Parent Coalition (Coalition), an organization
of parents and children who have or will apply to the exam
schools, filed suit. The Coalition claimed the new admission

3 Cite as: 604 U. S. ____ (2024)
A
LITO, J., dissenting
policy, though facially race neutral, violated the Equal Pro-
tection Clause.
1
Except in extraordinary circumstances, intentional dis-
crimination based on race or ethnicity violates that clause.
See Students for Fair Admissions, Inc. v. President and Fel-
lows of Harvard College, 600 U. S. 181, 220 (2023). But in
this case, despite overwhelming direct evidence of inten-
tional discrimination, the lower courts concluded that the
Coalition’s equal-protection claim failed because it did not
show “disparate impact.” The First Circuit reasoned that,
even under the new policy, white and Asian students re-
mained “stark[ly] over-represent[ed]” compared to their
population levels. 89 F. 4th, at 58 (citing Coalition for TJ
v. Fairfax Cty. School Bd., 68 F. 4th 864, 881 (CA4 2023)).
This reasoning is indefensible twice over. First, the lower
courts’ disparate-impact analysis was clearly flawed. I ad-
dressed this point last Term in Coalition for TJ, 601 U. S.
___ (opinion dissenting from denial of certiorari). There,
the Fourth Circuit concluded that a facially race-neutral
admission policy caused no disparate impact on Asian stu-
dents because they “were still overrepresented” compared
to their population level. Id., at ___ (slip op., at 7). As I
——————
1
Boston later replaced the challenged 2021–2022 admission policy
with a new policy that the Coalition does not challenge here. But, unlike
respondents, I fail to see how that moots this case. First, the Coalition
seeks nominal damages to redress the unconstitutional effects of the
2021–2022 admission policy. See Record 2103; Uzuegbunam v. Prec-
zewski, 592 U. S. 279, 292 (2021). Second, the opportunity to reapply
under the new policy does not foreclose equitable relief related to the
2021–2022 admission policy. Indeed, I see no reason why the District
Court could not order equitable relief entirely independent of the new
policy’s requirements. For example, it could order the admission of the
remaining students in the Coalition without any requirement for reap-
plication. Furthermore, if this case truly became moot on its way here,
we would ordinarily vacate the judgment below. See United States v.
Munsingwear, Inc., 340 U. S. 36 (1950).

4 BOSTON PARENT COALITION FOR ACADEMIC
EXCELLENCE CORP. v. THE SCHOOL COMMITTEE
A
LITO, J., dissenting
explained, that is a “patently incorrect and dangerous un-
derstanding” of disparate impact. Id., at ___ (slip op., at 1).
But we failed to stamp out the Fourth Circuit’s error when
we had the chance. Now, the error has metastasized and
spread to the First Circuit. Nonetheless, it bears repeating
that under our decision in Arlington Heights v. Metropoli-
tan Housing Development Corp., 429 U. S. 252 (1977), all a
party must show in order to rely on disparate impact as cir-
cumstantial evidence of discriminatory intent is that an ad-
mission policy reduced one racial group’s chance of admis-
sion and increased another racial group’s chance of
admission.
Second, and worse yet, the lower courts mistakenly
treated evidence of disparate impact as a necessary element
of an equal-protection claim. To my knowledge, we have
never said as much. To be sure, we have said disparate im-
pact is “[p]ossible evidence” of such a claim, Department of
Homeland Security v. Regents of Univ. of Cal., 591 U. S. 1,
34 (2020) (plurality opinion), and “may provide an im-
portant starting point,” Arlington Heights, 429 U. S., at
266. We have also emphasized that disparate impact “is not
the sole touchstone.”
2
Washington v. Davis, 426 U. S. 229,
242 (1976) (emphasis added). Further, a rigid rule requir-
ing disparate-impact evidence would make little sense. We
would, of course, recognize an equal-protection violation if
the government had a malicious “intent or purpose” to dis-
criminate against an individual based on his or her race or
ethnicity. Arlington Heights, 429 U. S., at 265. Proof that
the government’s action also injured the racial or ethnic
——————
2
The Courts of Appeals appear to be divided on whether disparate im-
pact is a necessary element of an Arlington Heights claim. Compare Chi-
nese Am. Citizens Alliance of Greater N. Y. v. Adams, 116 F. 4th 161, 165
(CA2 2024), with Lewis v. Ascension Parish School Bd., 806 F. 3d 344,
358–359 (CA5 2015); Doe v. Lower Merion School Dist., 665 F. 3d 524,
549 (CA3 2011); and Anderson v. Boston, 375 F. 3d 71, 89 (CA1 2004).

Cite as: 604 U. S. ____ (2024) 5
A
LITO, J., dissenting
group to which the plaintiff belongs, however, is not essen-
tial.
In making such an error, the First Circuit rendered le-
gally irrelevant graphic direct evidence that Committee
members harbored racial animus toward members of vic-
timized racial groups.
3
As the Committee members made
“explicit,” they worked to decrease the number of white and
Asian students at the exam schools in service of “racial eq-
uity.” Record 433. That is racial balancing by another
name and is undoubtedly unconstitutional.
* * *
We have now twice refused to correct a glaring constitu-
tional error that threatens to perpetuate race-based affirm-
ative action in defiance of Students for Fair Admissions. I
would reject root and branch this dangerously distorted
view of disparate impact. The Court, however, fails to do so
today, so I must respectfully dissent.
——————
3
The parties dispute whether Oliver-Dávila’s and Rivera’s leaked text
messages are properly before us. That issue, however, is not an obstacle
to our correction of the First Circuit’s legal error. Moreover, I doubt the
District Court was correct to exclude these later-discovered texts under
Rule 60(b)(2) of the Federal Rules of Civil Procedure due to the Coali-
tion’s alleged lack of diligence in procuring them. Before the Coalition
filed this action, one of its members submitted a public-records request
for, among other things, text messages between Oliver-Dávila and Ri-
vera during the meeting to vote on the proposal. The Boston Public
Schools inexplicably omitted the racist texts in its response. The later
revelation of the texts is thus an obvious basis for reconsideration.