My Old School

One of the most extraordinary stories of the year so far is the grassroots campaign by two students at the historic Boston Latin School to bring an end to a culture of racial intolerance at the elite institution. CBS Evening News reported on this campaign on January 31:

As a 1995 graduate of Boston Latin, I’m proud of these two students, and I’m confident that their campaign will bring about a reduction in racial tensions at America’s oldest public school. (I don’t recall being a personal target of racial opprobrium during my years there, but I do recall that it wasn’t exactly the warmest climate, so to speak. Frankly, I was lucky that I wasn’t specifically targeted: Dr. Omekongo Dibinga, a fellow 1995 graduate, has described just how raw racial tensions were back then.)

Last week, the Boston Globe explained why racial tensions at BLS have worsened in the past two decades:

Twenty years ago, some 23 percent of students at Boston Latin School were black, giving hundreds of African-American teenagers access to the city’s top public high school and a springboard to elite colleges.

Today, just 9 percent of Latin students are black, and only 12 percent are Hispanic, levels far lower than the city’s other two exam schools — Boston Latin Academy and O’Bryant School of Mathematics and Science — and markedly out of step with the district as a whole.

The percentage of black students who attend Latin School has declined each year since 2010, state data show, reaching its lowest mark since at least the mid-1990s.

The disparity lends context to recent complaints of racism that have roiled the school, prompted a School Department investigation, and raised questions about the cause — and consequences — of low enrollment of students of color at the competitive exam school.

Some Latin School students and alumni say the decline has contributed to a climate where students of color are marginalized and racial epithets are thrown around all too casually…

Another cause of shrinking black enrollment at the school is a 1995 lawsuit that led the Boston School Committee the following year to eliminate racial quotas that had, since the era of court-mandated school desegregation, reserved 35 percent of exam school seats for black and Hispanic students.

Since then, the number of black students at Latin School has dropped by 60 percent. Over the same period, the school’s Hispanic population has grown by less than 1 percent, even as the percentage of Hispanic students across the district has increased by almost 70 percent.

Speaking of that lawsuit–and a subsequent lawsuit that resulted in a 1998 ruling by the 1st US Circuit Court of Appeals that struck down a substitute diversity policy–I must note that at the time, I believed neither of the admissions policies that were being challenged could survive court scrutiny on 14th amendment grounds, and I dismissed the warnings from educational expert William Trent, then-Boston School Superintendent Thomas W. Payzant and the Boston Globe editorial page that eliminating those admissions policies would result in a de facto resegregation of Boston Latin and a worsening of the school’s racial climate. Naively, I believed that race relations would improve if those policies were eliminated, with the idea being that white students would no longer be able to assume that their black and Latino colleagues got into the school under “lower” academic standards. I was very wrong back then, and I feel responsible for helping to contribute to the current state of affairs at Boston Latin by ignoring concerns that things would get worse at the school if those policies were eliminated. I apologize not only to the current black and Latino students at Boston Latin for helping to bring about the circumstances that led to an excessively harsh educational environment, but also to the black and Latino students who didn’t get into Boston Latin because of the court-ordered elimination of those policies.

Having said that, I’m not the only person responsible for making things infinitely harder for black and Latino kids attending, or locked out of, Boston Latin. There are a few other individuals who need to apologize to Boston’s students of color. I know the plaintiff’s counsel in both of the cases that led to the elimination of the controversial admissions policies at Boston Latin never will, but what about the expert witness for the plaintiffs in both cases–conservative Harvard professor Stephan Thernstrom?

In a 2001 American Prospect piece, Adam Shatz recounted Thernstrom’s involvement in the first of the two cases that led to the current state of affairs at Boston Latin:

In Massachusetts, Stephan has played a small but significant role in
the politics of secondary education. Since the 1960s, the state has seen some of the bloodiest battles over school integration north of the Mason-Dixon line. It was in Boston in 1974 that U.S. District Court Justice W. Arthur Garrity, Jr., issued the original forced-busing order, which set off a near civil war as South Boston Irish children threw rocks and bottles at black children from Roxbury. Today, public schools in Massachusetts are more segregated than ever, with blacks and Latinos generally attending the worst ones.

Even so, Stephan thinks minority children in his state are a privileged class, beneficiaries of unearned preferences. In 1996 he served as a consultant in the case of Michael McLaughlin’s daughter against Boston Latin, an elite public school in Boston. Julia McLaughlin was a 12-year-old white girl who until then had always attended Catholic schools. When she was denied admission to Boston Latin, she sued on the grounds that the school’s 35 percent set-aside for black and Latino applicants violated her civil rights under the equal protection clause of the 14th Amendment. The judge presiding in the case was none other than W. Arthur Garrity, Jr., who on August 29, 199[6], decided in favor of McLaughlin. And while the ruling was a shock to those who remembered Garrity as the liberal judge behind court-ordered busing, it was in step with other decisions handed down in recent years. The Rehnquist Court may eventually rule that consideration of race in school assignment is unconstitutional and effectively override Brown v. Board of Education. For fear of inviting such a decision, Boston school officials declined to appeal Garrity’s ruling. When I asked Stephan about his role in the case, he described it as “pro-bono,” although Michael McLaughlin later asked the court to pay the witness $14,050–a request Garrity denied, characterizing Stephan’s long sessions coaching Michael and Julia McLaughlin as “an odd exercise whose purpose eludes us.”

Just as I wonder if Thernstrom feels any remorse for helping to bring about the circumstances that led to unbearable racial tensions at Boston Latin, so too do I wonder if 1st US Circuit Judges Bruce Selya and Michael Boudin–who constituted the 2-1 majority in the November 19, 1998 ruling in Wessmann v. Gittens that eliminated a less-stringent race-based admissions policy Boston implemented after deciding to scrap the policy challenged in McLaughlin v. Boston School Committee–feel any sense of regret for helping to make life hell for black and Latino kids in the city.

When the Wessmann case went to trial in January 1998, the Boston School Committee defended the replacement admissions policy on two grounds: the need to ensure racial diversity, and the need to remedy past discrimination against black and Latino children, discrimination that manifested itself in the form of lowered expectations and prejudicial attitudes on the part of older white teachers towards blacks and Latinos in the Boston Public Schools. Selya, a Ronald Reagan appointee, and Boudin, a George H. W. Bush appointee, rejected the diversity argument:

The word “diversity,” like any other abstract concept, does not admit of permanent, concrete definition. Its meaning depends not only on time and place, but also upon the person uttering it…It would be cause for consternation were a court, without more, free to accept a term as malleable as “diversity” in satisfaction of the compelling interest needed to justify governmentally-sponsored racial distinctions.

The two appellate judges also dismissed the School Committee’s evidence that racism on the part of Boston Public School teachers played a key role in blocking black and Latino access to the Latin School:

[T]he School Committee cites an “achievement gap” between black and Hispanic students, on the one hand, and white and Asian students, on the other, and claims that this gap’s roots can be traced to the discriminatory regime of the 1970s and before…

[However,] the mere fact that an institution once was found to have practiced discrimination is insufficient, in and of itself, to satisfy a state actor’s burden of producing the reliable evidence required to uphold race-based action..Beyond history, the School Committee offers statistical and anecdotal evidence to satisfy its burden of demonstrating a strong evidentiary basis for the inauguration of remedial policies. The district court found the evidence favoring race-conscious remedies to be adequate, but the court’s entire treatment of the subject comprises a lone paragraph composed of unrelievedly conclusory observations…

One cannot conclude from the isolated instances that [the Boston School Committee’s] witnesses recounted that low teacher expectations constitute a systemic problem in the Boston public schools or that they necessarily relate to the de jure segregation of the past.

However, in his dissent, Judge Kermit Lipez, a Bill Clinton appointee, noted that Selya and Boudin were wrong to summarily dismiss the evidence of teacher racism in the Boston Public Schools playing a key role in making it harder for black and Latino kids to get into Boston Latin, and that this evidence was precisely the sort of remnant of past discrimination that the Supreme Court allowed racially sensitive admissions policies to remedy:

Under the Equal Protection Clause of the Fourteenth Amendment, all racial or ethnic classifications by government actors are highly suspect and will be upheld only if they withstand strict judicial scrutiny. To meet the strict scrutiny standard, a challenged racial classification must serve a compelling governmental interest and must be narrowly tailored to achieve that goal [according to the US Supreme Court’s 1995 ruling in Adarand v. Pena]. The Boston School Committee argues that the Boston Latin admissions program serves two compelling interests: promoting diversity in the public schools and remedying the vestiges of past discrimination. The majority rejects both arguments. Although I have reservations about the Committee’s diversity argument on the facts of this case, I have none about its remedial argument. The district court properly found that the Boston School Committee had a strong basis in evidence for determining that the Boston Latin admissions program serves a compelling government interest in remedying the effects of prior discrimination, and that the program is narrowly tailored to achieve that goal…

The Committee’s evidence on the connection between prior discrimination and low teacher expectations, and low teacher expectations and the achievement gap, was undeniably a mix of statistical and anecdotal evidence. Although the majority finds this mix unacceptable, courts have often held that statistical evidence documenting a disparate impact or a pattern or practice of disparate treatment can combine with anecdotal evidence of acts of discrimination to establish a prima facie case of discrimination…

Lipez also noted the flaws in Thernstrom’s testimony in the Wessmann trial:

Wessmann conceded the existence of the achievement gap but attempted to rebut the causal explanation advanced by the Committee by asserting a “neutral explanation” for the disparities (that is, that they were due to socioeconomic conditions attributable, at most, to societal discrimination). Wessmann’s only witness on these matters, Professor Stephan Thernstrom, hypothesized that three variables-poverty rates, levels of education, and family structures-might be the cause of the achievement gap in the Boston system. He based his hypothesis on national statistical evidence that demonstrates powerful relationships between low achievement and poverty rates, levels of education and family structure. Professor Thernstrom suggested that, if a controlled study had been done to isolate the causes of the achievement gap, the study would have revealed that any causal connection between the achievement gap and teacher expectations was insignificant. He further rejected the Committee’s argument that low teacher expectations are connected to prior discrimination on the basis that the Committee did not conduct a study on this issue.

During cross-examination, Professor Thernstrom acknowledged that he had no data particular to Boston on any alternative causes of the achievement gap…He also acknowledged that, in his recent book evaluating the causes of a national achievement gap between students, he had written that neither poverty rates, levels of education, nor family structure could account for the national achievement gap between African-American and white students. In fact, in a chapter titled “Low Expectations, Low Performance,” he stated that “ask little of children in the way of academic achievement and little is what you tend to get.” In that chapter, he specifically cited actions of the Boston School Committee in 1990, and stated that the Boston public schools “were failing to do their job and most of all failing African-American pupils.”

As the district court noted in its opinion, the one expert witness to testify on Wessmann’s behalf conceded that, ultimately, alternative theories of causation could not fully explain the achievement gap between white and African-American students. Hearing this evidence, the district court rejected Thernstrom’s direct testimony and accepted only his cross-examination testimony, along with other evidence presented by the Committee, in reaching its conclusion that the Boston Latin admissions program “appropriately addressed the vestiges of discrimination that linger in the Boston Public School system.”…By asserting that the district court erred in crediting the extensive observational testimony of experienced, well-trained school administrators, and by requiring quantifiable data to establish a causal link between past discrimination and present outcomes, the majority would reduce strict scrutiny to a standard that is indeed “fatal in fact.”…In my view, the district court properly concluded that the School Committee had a strong basis in evidence for adoption of the Boston Latin admissions program, thereby meeting its evidentiary burden, and that the plaintiff failed to carry her burden of persuading the court that this affirmative action program was unconstitutional.

Meggie Noel and Kylie Webster-Cazeau, the two courageous young women who launched the #blackatbls campaign, deserve an explanation and an apology from those who of us who ignored the warnings about what would happen if policies to preserve diversity at Boston Latin were eliminated. This is my explanation and my apology.

I am sorry that I didn’t listen two decades ago. I am sorry that I gave more weight to the folks who argued that everything would be just fine if we got rid of those pesky admissions policies, that things would actually get better and not worse, that those policies were by definition unconstitutional. I was wrong.

As I noted earlier, I’m convinced that the plaintiff’s counsel in both of the cases that led to the escalation of racial tensions at Latin School will never, ever apologize, never admit fault, never acknowledge that he might have gotten things wrong, so don’t hold your breath waiting for that to happen. As for Thernstrom, Boudin and Selya, they also owe you an explanation and an apology (and if former Supreme Court Justice Sandra Day O’Connor can express some degree of contrition for one of her controversial past votes, so can Boudin and Selya). Here’s hoping they provide both soon. Until then, keep fighting.

UPDATE: More from WBUR-FM.

D.R. Tucker

D. R. Tucker is a Massachusetts-based journalist who has served as the weekend contributor for the Washington Monthly since May 2014. He has also written for the Huffington Post, the Washington Spectator, the Metrowest Daily News, investigative journalist Brad Friedman's Brad Blog and environmental journalist Peter Sinclair's Climate Crocks.