SCOTUS declines to hear “culture wars” cases

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Conservative justices objected as the Supreme Court on Monday sidestepped a new dispute over race in education by declining to consider whether an admissions program for public high schools in Boston unlawfully considered race.

Justice Samuel Alito and Justice Clarence Thomas both said they would have taken up the case, while Justice Neil Gorsuch said he shared their concerns about the policy.

Alito wrote that there was "overwhelming direct evidence of intentional discrimination" that warranted the Supreme Court's intervention.

The court's refusal to hear the case marks the second time the court has declined to review a policy aimed at increasing diversity in public high schools since the high court ended the consideration of race in college admissions last year.

That ruling left in doubt whether the court, which has a 6-3 conservative majority, has the votes to strike down admissions policies that do not explicitly consider race but nevertheless lead to a more diverse class.

“We have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action," Alito added.

The policy, implemented by the Boston School Committee in 2021, applied to three selective high schools in Boston: Boston Latin School, Boston Latin Academy and John D. O’Bryant School. It replaced a previous emphasis on standardized test scores as well as grades. Under the new plan, grades were considered, with 20 percent of the seats taken by those with the best grades.

Other seats were filled based on the geographic location of the students within Boston, with those with the best grades getting preference.

The plan, which was only in effect for one year, was challenged by the Boston Parent Coalition for Academic Excellence, a group representing white and Asian parents, which said the policy constituted a form of racial discrimination under the 14th Amendment’s equal protection clause.

A federal judge ruled that the policy was lawful because it was written in a race neutral way. The Boston-based 1st U.S. Circuit Court of Appeals agreed.

Court declines challenge to school gender identity policy
In other action Monday in the schools context, the court also declined to take up a case out of Wisconsin on whether parents can sue schools over policies intended to protect students struggling with their gender identity.

The Eau Claire Area School District issued guidance in 2021 in support for students who are transgender, nonbinary or gender non-conforming. The policy states that in some cases, an affected student’s parents may not be central to the process if there is a risk of lack of acceptance at home.

The policy was challenged by Parents Protecting Our Children, a group representing parents. They argue it violates their parental rights under both the 14th Amendment’s due process clause and the First Amendment’s free exercise clause.

Lower courts ruled that the group did not have legal standing to pursue its claims because it could not show that any members had been harmed by it.

Again, Alito and Thomas said they would have taken the case up, as did fellow conservative Justice Brett Kavanaugh.

"This case presents a question of great and growing national importance," Alito wrote.