Alito scolds colleagues as Supreme Court ducks new affirmative action case

The Supreme Court declined Monday to hear a case involving the affirmative action policy at three high-profile Boston schools, but several justices warned that they will have to deal with the issue at some point.

Justice Samuel A. Alito Jr. said the case marks the second time in recent months that the high court has refused a case involving high schools that are testing the limits of affirmative action policies in the wake of last year’s landmark Supreme Court ruling that struck down race-based approaches.

The case arose after Boston changed its rules for the 2021-2022 school year to try to expand Black and Hispanic student admissions at the three selective high schools. They moved from a largely grade and exam-based admissions standard to one that divvies up slots based on geography, with lower-income areas given priority.

But in crafting the policy, Boston officials had complained about “White racists,” mocked Asian American names and said they were intent on achieving “race equity” by increasing Black and Latino students at the selective schools.

Justice Alito said that kind of race-based animosity tainted the whole process.

“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 equity,’” he wrote. “That is racial balancing by another name and is undoubtedly unconstitutional.”

It takes four justices to agree to hear a case.

Justice Clarence Thomas joined Justice Alito in saying he would have taken the case. Justice Neil M. Gorsuch filed a separate statement saying he was troubled by Boston’s behavior, but felt the current case wasn’t ripe because the city had replaced the offending policy with a new one.

Still, he warned lower courts not to see the refusal to hear the case as an acceptance of Boston’s geography-based policy, and urged judges to look at the objections Justice Alito raised.

Boston, like other jurisdictions, is trying to figure out what can be done to boost enrollment of some minorities after last year’s Supreme Court ruling, which struck down race-based policies at Harvard University and the University of North Carolina.

In the 6-3 decision in that case, known as Students for Fair Admissions, the justices said racial preferences had outrun their constitutional lease.

Several high-profile public school systems have turned to geography-based policies to try to achieve their desired diversity in selective schools.

One of those is Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia. The Supreme Court earlier this year declined to hear a challenge to that school’s policy.

Justice Alito on Monday suggested the rebuffs won’t last.

“We have now twice refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance of Students for Fair Admissions,” he wrote. “I would reject root and branch this dangerously distorted view of disparate impact.”