The Supreme Court on Monday morning declined to take up several hot-button issues, including a challenge by parents to a school district’s plan to provide support for transgender and non-binary students, a dispute over the admissions policy used during the 2021-22 school year for three of Boston’s elite public high schools, and the case of a Hawaii man prosecuted for carrying a handgun without a license.
The announcement came in a list of orders released from the justices’ private conference last Friday. The court on Friday afternoon added three new cases to its docket for the 2024-25 term; as expected, it did not grant review in any additional cases on Monday morning.
Justice Samuel Alito, joined by Justice Clarence Thomas dissented from the decisions not to grant review in both of the school cases. Alito called the question at the center of the parents’ challenge to the school district’s support plan one of “great and growing national importance,” while in the Boston case he suggested that in denying review the court had “refused to correct a glaring constitutional error that threatens to perpetuate race-based affirmative action in defiance of” the justices’ 2023 decision in Students for Fair Admission v. Harvard College.
In Parents Protecting Our Children v. Eau Claire School District, the justices denied the petition for review filed by a group of parents seeking to challenge a Wisconsin school district’s plan to provide support for transgender and non-binary students.
The Eau Claire School District adopted guidance in 2021 to serve as a resource for schools. Among other things, the guidance instructs school staff to speak with a student before discussing the student’s gender identity with a parent. And in 2022, the school district created a gender support plan for schools to use to memorialize the student and school district’s understanding of the student’s gender identity, as well as the parent’s involvement in the process. The gender support plan can be released to parents at their request.
A group calling itself Parents Protecting Our Children went to federal court to block the enforcement of the school district’s guidance. The group argued that the guidance interferes with its members’ rights “to make decisions with and on behalf of their children.”
A federal district court dismissed the case. It stressed that the group had sought to block the guidance in its entirety, without “identifying any instance of the School District applying the policy in a way concerning or detrimental to parental rights.”
The U.S. Court of Appeals for the 7th Circuit upheld the dismissal. It noted that the group had not alleged that “even one” of its members had “experienced an actual or imminent injury attributable to” the guidance or support plan. “Nor, for that matter,” the court of appeals continued, “do we see an indication that any of Parents Protecting’s members asked the School District about how it plans to implement the guidance.”
The group came to the Supreme Court in June, asking the justices to decide whether it has a legal right to sue, known as standing, to challenge the guidance and support plan. It argued that its case, “and the many like it, represent one of the most significant failures of the federal judicial system in our lifetime.”
But the school district urged the justices to stay out of the dispute, observing that “not a single member’s child has been diagnosed with gender dysphoria, has expressed that they are gender non-conforming, has expressed gender identity issues, or has contacted anyone in the District to address the need for gender support.” The lawsuit cannot go forward, it wrote, because the group’s claim that it could be harmed by the district’s policy rests entirely on a “highly attenuated chain of future possibilities that may never occur.”
After considering the case at five consecutive conferences, and less than a week after the court heard arguments in the challenge to Tennessee’s ban on gender-affirming care for transgender minors, the justices denied the group’s petition.
Justice Brett Kavanaugh indicated, without explanation, that he would have granted the petition.
In a two-page opinion joined by Thomas, Alito dissented from the denial of review. He pushed back against the 7th Circuit’s conclusion that the group lacked a legal right to sue, arguing that “the parents’ fear that the school district might make decisions for their children without their knowledge and consent is not ‘speculative.’” Alito expressed concern that federal courts like the 7th Circuit in this case were “succumbing to the temptation to use the doctrine of” standing “as a way of avoiding some particularly contentious constitutional questions.”
The Supreme Court on Tuesday declined to take up a challenge to the admissions program at three of Boston’s elite public high schools. Although the admissions process for those schools relies on the applicants’ grades and zip codes, the group that brought the challenge contended that it was nonetheless intended to discriminate against white and Asian-American students. That violates the Constitution, the group argued, even if white and Asian-American students still receive offers at a rate that reflects their representation in the applicant pool.
The court’s order denying review came roughly eight months after the court turned down a request to weigh in on a similar dispute over the admissions process at a prestigious Virginia magnet school that considers socioeconomic factors in allocating some of the school’s 550 seats. In that case, the parents and alumni challenging the policy contended that it was intended to reduce the number of Asian-American students.
Justice Samuel Alito dissented from the court’s decision not to hear the Virginia case, in an opinion joined by Justice Clarence Thomas.
The three schools at the center of the Boston case are Boston Latin Academy, the John D. O’Bryant School of Mathematics and Science, and Boston Latin School, which was founded in 1635 and is the country’s oldest high school. They are known as “exam schools.” For two decades, until the 2021-22 school year, applicants were offered admission through a competitive process that relied on a combination of their grades and their scores on a standardized test.
In 2020-21, the last year that students were admitted using the previous system, the number of white students offered admission was more than double their representation in the citywide school-age population, while the number of Asian-American students offered admission was more than triple their representation.
In 2020, the Boston Public Schools formed a working group to recommend changes to the admissions process for the exam schools. The working group created an “equity impact statement” that outlined goals for the new admissions criteria. They included “a clear and fair process for admission in the ‘21-22 school year that takes into account the circumstances of the COVID-19 global pandemic that disparately affected families in the city of Boston” and having student enrollment “better reflect[] the racial, socioeconomic, and geographic diversity of all students (K-12) in the city of Boston.”
In October of that year, the Boston School Committee – the governing body for Boston Public Schools – adopted a new plan for the 2021-22 school year. The new plan allocated 20% of the seats at the exam schools to students with the best grades citywide. The remaining seats were allocated based on grades to the top students in each zip code.
Under the new plan, the percentage of white and Asian-American students who received offers of admission to the exam schools fell, but they continued to be overrepresented compared to their numbers in the pool of eligible applicants.
The Boston Parent Coalition for Academic Excellence, a nonprofit made up of students, parents, and alumni from the exam schools, filed a lawsuit against the School Committee in federal court. It contended that the new admissions plan violates the Constitution’s guarantee of equal protection by intentionally discriminating against white and Asian-American students.
A federal appeals court in Boston ruled for the School Committee late last year. That prompted the parent coalition to come to the Supreme Court this spring, asking the justices to intervene. The coalition observed that the court has repeatedly “emphasized that racial balancing for its own sake” is inherently unconstitutional. The decision by the court of appeals, the coalition suggested, “effectively licenses” the government “to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups.”
The School Committee urged the justices to stay out of the dispute. It stressed that the admissions plan at the center of the case was only in place for one year, in response to the COVID-19 pandemic when the school board could not use an exam. The coalition, the School Committee emphasized, is not challenging the policy now in place, which considers grades, standardized test scores, and geography. Because the students on whose behalf the coalition filed the lawsuit could have applied again for admission to the exam schools under the current policy, there is no longer a live dispute.
And in any event, the committee continued, the Supreme Court has “repeatedly endorsed the use” of factors that do not rely on race, such as geography, family income, and grade point averages, in the admissions process for K-12 education to achieve racial diversity.
In a five-page dissent joined by Thomas, Alito emphasized that, “intentional discrimination based on race or ethnicity” violates the Constitution. But here, he wrote, “despite overwhelming direct evidence of intentional discrimination,” the lower courts rejected the coalition’s claim on the ground that, even under the new policy, white and Asian-American students were still over-represented among successful applicants. “This reasoning,” Alito stressed, “is indefensible.”
Justice Neil Gorsuch wrote a statement regarding the denial of review in which he acknowledged that the policy at the center of the coalition’s case is no longer in effect and therefore agreed with the court’s decision not to take up the case. But he cautioned against construing the denial of review as endorsement of the lower court’s ruling, adding that he shared Alito’s “significant concerns about the First Circuit’s analysis” and urged “lower courts facing similar cases” to keep those concerns in mind.
The justices also declined to hear the case of a Hawaii man prosecuted for carrying a handgun without a license.
When Christopher Wilson was arrested on Maui in 2017 for trespassing, he was also carrying a loaded .22 caliber handgun for which he did not have a license. In July 2022, Wilson moved to dismiss the charges against him. He pointed to the Supreme Court’s recent decision in New York State Rifle & Pistol Association v. Bruen, in which the justices struck down New York’s concealed-carry law and indicated that courts should only uphold gun restrictions if there is a tradition of such regulations in early U.S. history.
The trial court agreed and dismissed the charges, but the Hawaii Supreme Court reinstated them, calling the analysis in Bruen “fuzzy” and “backward looking.” Wilson came to the Supreme Court this spring, asking the justices to intervene. He said that the state supreme court’s ruling was “so fundamental, clear, and out of step with” the U.S. Supreme Court’s decisions “that further briefing is unnecessary.” At a minimum, however, he suggested, the justices should take up the case themselves.
But the state urged the justices to stay out of the dispute. It countered that Bruen does not bar the states from requiring anyone who wants to carry a gun in public from obtaining a license. Wilson lacks a legal right, known as standing, to challenge Hawaii’s licensing scheme, the state contended, because he never tried to obtain a license. And in any event, the state added, the case is still in its preliminary stages, because Wilson has not yet been tried.
Thomas, joined by Gorsuch, penned a statement regarding the denial of review in which he agreed that the fact that the case is still in its preliminary stages “weighs against” the Supreme Court’s intervention in the proceeding. But the Hawaii Supreme Court’s conclusion that Wilson cannot sue because he never applied for a license, Thomas added, “contravenes the settled principle that Americans need not engage in empty formalities before they can invoke their constitutional rights, and it wrongly reduces the Second Amendment to a ‘second-class right.’” In the proper case, Thomas made clear, he would grant review “to reaffirm that the Second Amendment warrants the same respect as any other constitutional right.”
The justices will meet again on Friday, Dec. 13, for another conference.
This post is also published on SCOTUSblog.
