A federal appeals court decision this week upholding a revised admissions plan to boost diversity at an acclaimed magnet high school is being hailed by some as an affirmation of a race-neutral method for attracting more students from underrepresented racial and economic groups into a highly selective school.
“I think this decision was pretty easy in terms of existing precedent,” said Kevin Welner, an education professor at the University of Colorado, Boulder, who joined a friend-of-the-court brief in support of the admissions plan for Thomas Jefferson High School for Science and Technology in Virginia, whose admissions policies have been debated for years and have taken on symbolic importance in the shifting conversation on equity and access. A 2-1 panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., upheld the plan on May 23.
But challengers of the plan argue it is race-neutral in name only and discriminates against Asian American students, whose enrollment numbers dropped significantly after the plan took effect. The challengers anticipate that a forthcoming U.S. Supreme Court decision on the use of race in college admissions will lead, at a minimum, to a fresh look at their case.
“We don’t dispute that this was a facially race-neutral policy,” said Glenn E. Roper, a Denver lawyer with the Pacific Legal Foundation, which is representing the challengers who make up the group Coalition for TJ. “But when it is motivated by discriminatory intent and has a discriminatory effect, you don’t get a pass.”
The appeals court reversed a lower-court decision
Thomas Jefferson High School in Alexandria, Va., known locally as “TJ” and part of the 181,000-student Fairfax County school district, was founded in 1985 and has consistently been ranked among the nation’s top high schools. In 2019-20, its enrollment was 71.5 percent Asian, 19.48 percent non-Hispanic white, 2.6 percent Hispanic or Latino, 1.72 percent Black, and 4.70 percent other.
The school system’s overall student enrollment is currently 38.6 percent white, 27.1 percent Hispanic, 19.8 percent Asian, 10 percent Black, 5.9 percent two or more races, and less than 1 percent other.
The 2020 racial reckoning over the murder of George Floyd in police custody prompted renewed efforts to increase diversity at TJ. The school board eliminated an entrance exam and adopted a plan under which the top 1.5 percent of each of the district’s middle schools who meet certain minimum academic standards will be eligible for admission to the selective high school. The district then conducts a “holistic review” that examines factors including each student’s grade point average, a problem-solving essay, and “experience factors” that include whether they are economically disadvantaged, English learners, or from underrepresented middle schools.
The Coalition for TJ, an advocacy group formed by parents, sued the district in 2021 under the 14th Amendment’s equal-protection clause, even before the effects of the change in policy were clear. For the first school year the policy was in place, 2021-22, roughly 54 percent of admissions offers went to Asian American students, 22 percent when to non-Hispanic white students, 11 percent went to Hispanic students, 8 percent to Black students, and nearly 5 percent to multi-racial or students of other backgrounds.
In February 2022, a federal district court ruled against the policy, finding that it resulted in a disparate impact on Asian American students. The judge found that the district had sought to achieve a racial balance at TJ at the expense of Asian American students and that it was racially motivated to refine the admissions process.
The 4th Circuit court blocked the effect of the ruling, allowing Fairfax County schools to continue to use the revised admissions policy. The challengers asked the Supreme Court to lift that stay, but the high court refused to intervene over the dissents of Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch.
The 4th Circuit took up the merits of the case on an expedited basis, and in its decision in Coalition for TJ v. Fairfax County School Board, ruled 2-1 to uphold the revised admissions plan.
“We are satisfied that the board’s adoption of the challenged admissions policy fully comports with the 14th Amendment’s demand of equal protection under the law,” Judge Robert B. King wrote for the majority. “The policy visits no racially disparate impact on Asian American students. Indeed, those students have had greater success in securing admission to TJ under the policy than students from any other racial or ethnic group.”
Concurring judge: Conservative justices have promoted race-neutral plans
Besides Asian American students having the best “success rate” for admission to TJ of any racial group, King said, “low-income Asian American students, as well as Asian American students attending middle schools theretofore poorly represented at TJ, saw far more offers of admission to TJ than they had in earlier years.”
King rejected the challengers’ argument that the school district discriminated against Asian American students by “proxy.”
“To the extent the board may have adopted the challenged admissions policy out of a desire to increase the rates of Black and Hispanic student enrollment at TJ—that is, to improve racial diversity and inclusion by way of race-neutral measures—it was utilizing a practice that the Supreme Court has consistently declined to find constitutionally suspect,” King said.
Judge Toby Heytens joined King’s opinion but wrote a concurrence picking up on that point.
“The Supreme Court has repeatedly blessed seeking to increase racial diversity in government programs through race-neutral means,” Heytens said. “In fact, the court and individual justices have spent more than three decades encouraging—and sometimes insisting—government officials do precisely that before considering race-conscious ones.”
Heytens pointed to passages from opinions by some of the high court’s more conservative justices who in cases going back decades, and more recent ones, have embraced race-neutral alternatives for achieving diversity in government programs. In particular, Heytens cited Alito’s dissent in Fisher v. University of Texas at Austin, the 2016 decision in which the court upheld a race-conscious admissions program at the flagship state university.
In his dissent, Alito appeared to endorse expanding the Texas Top Ten Percent plan, signed into law in 1997 by then-Gov. George W. Bush, that guaranteed admissions to the highest-ranking students from every Texas public high school, which in Alito’s view would allow the state to achieve its diversity goals “without injecting race into the process.” (The university disagreed and argued it needed to consider race for some applicants.)
Heytens said: “Having spent decades telling school officials they must consider race-neutral methods for ensuring a diverse student body before turning to race-conscious ones, it would be quite the judicial bait-and-switch to say such race-neutral efforts are also presumptively unconstitutional.”
Forthcoming Supreme Court ruling could muddy the waters
Richard Kahlenberg, a non-resident scholar at Georgetown University’s McCourt School of Public Policy, has for years advocated against racial preferences in education by arguing that schools and colleges could achieve their diversity goals through race-neutral plans based on socioeconomic factors. He believes the 4th Circuit got it right with its decision in the TJ case.
“The U.S. Supreme Court justices for decades have been trying to find a balance,” he said. “They recognize that racial and economic diversity are good things for education institutions, but they are also uneasy with the explicit use of racial preferences in deciding who gets ahead.” The middle ground has always been that educational institutions should, where they can, try to use alternative means such as giving a leg up to economically disadvantaged students to achieve racial and economic diversity.”
The challengers remain unconvinced, and they take heart in the dissent of Judge Allison Jones Rushing.
The Fairfax County district’s policy has a “neutral varnish,” she said, but evidence in the case “shows an undisputed racial motivation and an undeniable racial result.”
During its deliberations, the school board “plainly stated its intention to craft an admissions policy for TJ that would reform the racial composition of the student body to reflect the racial demographics of the district,” Rushing said. The board adopted the broader middle school guaranteed-seat provision knowing it would reduce the number of students from feeder middle schools that had traditionally sent many Asian-American students to TJ, she said. That and other evidence showed the board had a discriminatory purpose, she added.
Roper, of the Pacific Legal Foundation, said he worries that if the 4th Circuit decision stands, school districts around the country will attempt to put a similar “neutral varnish” on diversity policies “that really have a discriminatory purpose.”
Daniel I. Morenoff, the executive director of the American Civil Rights Project, a Dallas-based legal organization that filed a friend-of-the-court brief in support of the challengers, said that he also believes the 4th Circuit opinion might be taken by school districts as an invitation to “push the envelope” on racial policies.
“But I don’t know that any district should take much comfort from this opinion, both because it is an outlier and there is a real risk of it being either directly reversed by the Supreme Court or rendered meaningless by the coming decisions in the [higher education] cases,” he said.
Pacific Legal has indicated it will appeal the 4th Circuit decision directly to the high court, bypassing any review by the full appeals court. Meanwhile, a decision is expected by the end of June in the higher education cases involving Harvard University and the University of North Carolina.