Articles

Case & Statute Comments

Affirmative Action – Fourteenth Amendment – Public Educational Institutions
By Katherine Robertson

This article originally appeared in the Massachusetts Bar Association’s Journal, the Massachusetts Law Review, Volume 84, No. 2, Fall 1999

Wessmann v. Gittens

In the case of Wessmann v. Gittens,1 a three-judge panel of the U.S. Court of Appeals for the First Circuit reversed a decision by the U.S. District Court for the District of Massachusetts2 and struck down as unconstitutional the admission policy for the Boston Latin School, considered the most prestigious of Boston’s three examination schools.3 The admission policy struck down in Wessmann had been recommended by a task force and adopted by the Boston School Committee, after careful consideration, as a means of maintaining Hispanic and black enrollment at BLS.4 With the Wessmann decision, the First Circuit joined the Fifth Circuit Court of Appeals5 in declaring unconstitutional a public school admission policy which, in the words of the First Circuit, made "race a determining factor in the admission [to a public school]."6 Perhaps out of concern about the implications of an adverse ruling, the Boston School Committee did not pursue an appeal to the U.S. Supreme Court. Nonetheless, the Wessmann decision, which joins other decisions in the areas of education and employment that have struck down affirmative action programs or policies,7 is already changing educational policies at other public educational institutions. For example, following the Wessmann decision, the University of Massachusetts at Amherst announced that it was changing the affirmative action aspects of it admission policies.

The Wessmann case had complicated historical antecedents. In the 1970s, the U.S. District Court held that Boston had violated the constitutional rights of African-American children by maintaining a segregated school system. Although there was no specific evidence of intentional segregation pertaining to admissions to BLS, very few black students attended BLS, and the school had already entered into a consent decree in an earlier suit charging discriminatory admission practices. For these and other reasons, the federal courts ordered BLS (and the other examination schools) to set aside at least 35 percent of the spaces in each entering class for African American and Hispanic students. Establishment of the 35 percent set aside, in conjunction with Asian enrollment of between 6 and 8 percent, resulted in a racial and ethnic class composition in the examination schools that was similar to the composition of classes at other Boston public schools.8 In 1975, the First Circuit observed that the 35 percent set aside was "a basic tool in remedying constitutional violations."9

In 1987, at the instigation of the Boston School Committee, the federal court relinquished control over student assignments in the Boston public schools.10 Among other things, this meant that the Boston School Committee was no longer compelled by court order to maintain the 35 percent set aside at BLS. It continued to do so voluntarily, however, until 1995, when a disappointed white applicant, denied admission to BLS because of the 35 percent set aside, was awarded preliminary injunctive relief (in the form of her admission to BLS) based on her equal protection challenge to the constitutionality of the set aside.11 In 1996, the McLaughlin case was dismissed as moot in light of the School Committee’s adoption of a new admission policy to replace the 35 percent set aside.12 An equal protection challenge to this new admission policy was the subject of the First Circuit’s Wessmann decision.

As described by the First Circuit, the policy’s significant features were as follows. All applicants to the examination schools took a standardized test. The results of the standardized test, considered in combination with the applicant’s grade point average, produced a composite score used to rank applicants to the examination schools numerically. Only an applicant with a composite score in the top 50 percent of the overall applicant pool for an examination school was eligible, as a member of the qualified applicant pool, for admission. Half of the available seats for an examination school’s entering class were awarded purely on the basis of the applicant’s rank based on composite score. The remaining 50 percent of the class was admitted on the basis of "flexible racial/ethnic guidelines" that were adopted as part of the policy. To apply the guidelines, school officials first determined the relative proportions of five racial/ethnic categories — white, black, Hispanic, Asian and Native American — in the remaining pool of qualified applicants. Then, the top ranked students in each of the racial/ethnic categories were admitted to fill the remaining available seats in proportion to the representation of the category in the remaining pool of qualified applicants. As applied, the policy produced shifting quotas for each of the five categories, depending on the composition of the remainder of the qualified applicant pool.13 Under the policy, as the First Circuit observed, "a member of a designated racial/ethnic group [might] be passed over in favor of a lower-ranking applicant of another group if the seats allotted for the former’s racial/ethnic group [had] been filled."14

This happened to Sarah Wessmann. There were 90 available seats at BLS for ninth graders in 1997. Ms. Wessmann ranked 91 overall in the BLS applicant pool. Had admission been determined strictly on the basis of the composite score ranking, Ms. Wessmann would have been admitted, because two of the students ranked among the top 45 applicants on the list chose to go to other examination schools. However, because the policy required BLS officials to offer the remaining 45 seats to 13 blacks, 18 whites, 9 Asians and 5 Hispanics, Ms. Wessmann was not among those admitted. She could prove that she had been denied a seat at BLS because of the policy. Her father brought suit on her behalf, seeking her admission to BLS.

All members of the panel agreed that the policy involved a governmental use of racial preferences and could be justified, therefore, only if it served a compelling state interest and was narrowly tailored to achieve that interest. In its defense of the policy, the School Committee identified two compelling interests: promoting diversity in the public schools and remedying lingering effects of past discrimination.

During the Wessmann bench trial, Boston School Superintendent Payzant testified eloquently, albeit in general terms, to the value of racial and ethnic diversity in the classroom. Relying on this, and similar testimony from the BLS Headmaster, the district court held that the goal of racial diversity in the setting of a public high school was a compelling state interest.15 Recent decisions from other jurisdictions reflect a decidedly mixed reception to claims of diversity as a compelling state interest.16 A majority of appellate courts that have recently considered the issue have rejected diversity as a compelling government interest.17 In large part, the courts in these decisions have objected to a definition of diversity that is based exclusively on racial or ethnic classifications. For example, in Hopwood v. State of Texas, the Fifth Circuit rejected the use of race, "in the diversity context … as a proxy for other characteristics that institutions of higher education value but that do not raise similar constitutional concerns."18 Plaintiff Cheryl Hopwood, the court noted, was a 32-year-old wife of a member of the armed forces who was raising a severely handicapped child. Her circumstances, the court opined, "would bring a different perspective to the law school."19 In other words, a policy that excluded Ms. Hopwood in the name of "diversity" did not make sense and lacked legitimacy. The Hopwood court read recent Supreme Court precedent as rejecting all racial preferences on equal protection grounds, unless the preference could be justified as a remedy for past discrimination, and rejected diversity, defined in racial/ethnic terms, as a compelling state interest.20

The Wessmann majority framed the issue somewhat differently. Assuming arguendo that "some iterations of ‘diversity’ might be sufficiently compelling, in specific circumstances, to justify race-conscious actions,"21 the court concluded that the generalizations about the value of diversity offered as evidence by the School Committee did not suffice as proof of a compelling state interest. First, the evidence showed that, under a strictly merit-based approach, black and Hispanic students would comprise between 15 and 20 percent of each entering class at BLS. In the court’s view, the School Committee failed to show "that a higher level of [minority enrollment] was needed to achieve diversity of views and backgrounds."22 Second, the court criticized the definition of diversity embodied in the policy on the grounds that it considered race and ethnicity only. The court probably found the grounds for the policy less than compelling in part because many of the beneficiaries of the policy were black and Hispanic students who applied to BLS from private and parochial schools, rather than disadvantaged students from Boston’s inner city schools.23 Judge Lipez, in dissent, also had "reservations about the [School] Committee’s diversity argument on the facts of this case."24 The need for diversity was the foremost justification advanced by the School Committee in support of the policy. The School Committee failed to persuade any member of the panel that the goals and benefits of diversity could justify an admission policy that made race a determining factor in admission to BLS.

As an alternative justification for the policy, the School Committee also contended that the policy was necessary to remedy lingering effects of past discriminatory practices in the Boston school system. In support of this contention, the School Committee offered undisputed statistical evidence of a dismaying achievement gap between, on the one hand black and Hispanic students, and, on the other hand, Asian and, particularly, white students in the Boston public schools. As detailed by Judge Lipez in dissent, the School Committee presented evidence of a "persistent and relatively unchanging gap in achievement in all subject matters which correlated with race: African-American and Hispanic students fared much worse on [standardized] tests than whites … [and] Asians fared worse than whites on language skills achievement."25 There was further evidence that "African-American and Hispanic applicants to [BLS] from private elementary schools do much better in the admission process than their Boston public school counterparts."26

To link this achievement gap to past discrimination, the School Committee offered evidence that a significant cause of the gap was teachers’ lower expectations of minority students. This attitude was said to have developed during the earlier period of purposeful discrimination and to have been perpetuated by teachers remaining in the system.27

The majority found the evidence offered by the School Committee in support of this theory inadequate to the task. In this regard, the majority noted the absence of a systematic study of the Boston school system showing persistent discriminatory attitudes on the part of teachers. In the majority’s view, anecdotal evidence offered by the Superintendent and the Deputy Superintendent could not remedy this deficiency.

Ultimately, however, the cause of the achievement gap among students in the Boston public school was not the decisive question. The fatal problem, correctly identified by the court, was that the policy was not narrowly tailored to address these alleged instructional deficiencies in the Boston public school system. The School Committee had no evidence to show that the policy would remedy, or would even address, low teacher expectations about the performance of black and Hispanic students.28 Moreover, it appeared from the evidence that the primary beneficiaries of the policy were black and Hispanic students from private and parochial schools, not students in the public school system disadvantaged by allegedly discriminatory teacher attitudes. This poor fit, the court explained, was not surprising, because the policy "was not devised to assuage past harms, but … was simply a way of assuring racial/ethnic balance." Assuring racial/ethnic balance, while an admirable goal, could not be accomplished by a policy that violated the Constitution’s equal protection guarantee.

Wessmann was, in fact, an easy case. Sarah Wessmann could prove that she was denied admission to BLS because the seat that would otherwise have been hers went to another student on the basis of that student’s race or ethnicity. The use of such racial and ethnic quotas has been a questionable practice, as a matter of constitutional law, since at least 1978 when Regents of the University of California v. Bakke29 was decided by the U.S. Supreme Court. If experience is any guide, however, Wessmann does not mean the end of affirmative action at public educational institutions in the First Circuit. It simply means that admission policies will change form. In Texas, following the Hopwood decision, and in California, following the enactment of Proposition 209,30 selective public educational institutions in Texas and California changed their admission criteria from the strictly numerical to more subjective and malleable approaches that are, facially at least, race neutral. The University of Texas began asking its applicants to describe disadvantages they had faced that might "put their achievements into context."31 California’s elite public institutions of higher education tried several new approaches to admission characterized as "comprehensive" and "holistic," including requiring consideration of the quality of the applicant’s high school and evaluation of the applicant’s S.A.T. score in light of the applicant’s history and circumstances.32 Such subjective approaches to admission are much more difficult to challenge as violative of equal protection because, among other things, no student can easily prove that she was denied admission because of a preference in favor of a student of a different race or ethnicity.

As did Proposition 209 and the Hopwood decision, the Wessmann decision probably will force changes in admission policies at selective public educational institutions in states governed by the First Circuit away from strictly objective and numerical criteria. Beyond this first step, however, it seems unlikely that the courts will play an important role in determining who is admitted to selective public school like Boston’s examination schools. Whether such changes in admission policies are ultimately beneficial — and who will benefit — remains to be seen.

End Notes:

1. 160 F.3d 790 (1st Cir. 1998).
2. 996 F. Supp. 120 (D. Mass.) (Tauro, C.J.).
3. The City of Boston operates three public high schools which admit students on a competitive basis, hence, examination schools. They are: Boston Latin School, Boston Latin Academy, and the John D. O’Bryant School of Mathematics and Science. Applicants to the examination schools come from public and private schools all over the city.
4. The panel’s decision in Wessmann was not unanimous. Judge Selya wrote the principle opinion holding BLS’s admission policy violative of the Fourteenth Amendment’s Equal Protection guarantee. Judge Boudin concurred in a (brief) separate opinion. Judge Lipez, in dissent, would have affirmed the decision of the District Court.
5. In Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996), the United States Court of Appeals for the Fifth Circuit struck down as unconstitutional the University of Texas Law School admission policy. The law school used a composite of applicants’ undergraduate grade point averages and Law School Aptitude Test scores as a matter of administrative convenience to rank applicants to the law school. Applicants were divided into three groups — presumptive admit, presumptive deny and discretionary zone — on the basis of composite score. The law school gave black and Hispanic applicants a significant advantage in the admission process by, among other things, lowering the presumptive admission score for these applicants.
6. 160 F.3d at 792
7. See Taxman v. Board of Educ. of Township of Piscataway, 91 F.3d 1547 (3d Cir. 1996) (decision to retain black teacher and lay off equally qualified white teacher pursuant to school’s affirmative action plan violated Title VII prohibition against discrimination on the basis of race), cert. dismissed, 118 S.Ct. 595 (1997).
8. See Wessmann v. Boston Sch. Comm., 996 F. Supp. 120, 122 (D. Mass. 1998), rev’d, 160 F.3d 790 (1st Cir. 1998).
9. Morgan v. Kerrigan, 401 F. Supp. 216, 258 (D. Mass. 1975), aff’d 530 F.2d 401, 425 (1st Cir. 1976).
10. See Morgan v. Nucci, 831 F.2d 313, 326 (1st Cir. 1987).
11. See McLaughlin v. Boston Sch. Comm., 938 F. Supp. 1001, 1005 (D. Mass. 1996).
12. See McLaughlin v. Boston Sch. Comm., 952 F. Supp. 33, 35 (D. Mass. 1996).
13. In support of the policy, the School Committee argued that it did not set quotas as had the 35 percent set aside, because the number of seats allocated to any racial or ethnic group changed depending on the composition of the remaining pool of qualified applicants. The School Committee also argued that the policy did not warrant strict scrutiny because there was no consistent preference for any particular group. These arguments were rejected because, all members of the panel agreed, the policy did "involve racial preference, whatever the complexity of the plan and subtlety of expression." Wessmann, 160 F.3d at 809 (Boudin, J., concurring). It was clear, moreover, that the Committee selected the policy from among the various options proposed for its consideration because this was the option that "would minimize the diminution of black and Hispanic students expected to result from abandonment of the 35 percent set-aside." Id. at 793.
14. Id.
15. Wessmann, 996 F. Supp. at 138-129.
16. Relying on Justice Powell’s opinion in Regents of the Univ. of California v, Bakke, 438 U.S. 265, 289 (1978), several federal district courts in addition to the Wessmann district court have held that diversity in an educational setting is a compelling state interest. See, e.g., Eisenberg v. Montgomery County Public Schools, 19 F. Supp. 2d 449 (D. Md. 1998); Davis v. Halpern, 768 F. Supp. 968 (R.D. N.Y. 1991).
17. See, e.g., Lutheran Church — Mo. Synod v. FCC, 141 F.3d 344, 354 (D.C. Cir. 1998) ("We do not think diversity can be elevated to the compelling level"); Taxman v. Board of Educ. of Township of Piscataway, 91 F.3d 1547, 1558-1562 (3d Cir. 1996) (rejecting diversity in teaching staff of public high school as a compelling government interest), cert. dismissed, 118 S.Ct. 595 (1997); Lesage v. Texas, 158 F.3d 213, 220-222 (5th Cir. 1998) ("Diversity is not a compelling State interest that satisfies the strict scrutiny standard for the purpose of admission to a public university").
18. Hopwood, 78 F.3d at 946.
19. Id.
20. Id. at 944.
21. Wessmann, 160 F.3d at 796.
22. Id. at 809 (Boudin, J., concurring).
23. Id. at 794, 808.
24. Id. at 810 (Lipez, J. dissenting).
25. Id. at 820 (Lipez, J. dissenting).
26. Id.
27. Id. at 804.
28. There was evidence that the School Committee was addressing the achievement gap by means other than the policy. The School Committee was providing students in the Boston public schools feeding into the examination schools with more extensive schooling (extra classes and summer school), advanced work classes, and admissions test preparatory classes. Wessmann, 160 F.3d at 790 (Lipez, J., dissenting). The School Committee offered testimony, however, that these race neutral programs were "a long-term strategy" and "not a panacea to deal with the problem of unequal access overnight." Id. at 831.
29. 438 U.S. 265 (1978).
30. Proposition 209 provides, in part, that "the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting."
31. James Traub, The Class of Prop. 209, NEW YORK TIMES MAGAZINE, May 2, 1999 at 78.
32. Id.