Law & Courts

Supreme Court Declines Case on Selective High School Aiming to Boost Racial Diversity

By Mark Walsh — February 20, 2024 7 min read
Rising seniors at the Thomas Jefferson High School for Science and Technology gather on the campus in Alexandria, Va., Aug. 10, 2020. From left in front are, Dinan Elsyad, Sean Nguyen, and Tiffany Ji. From left at rear are Jordan Lee and Shibli Nomani. A federal appeals court’s ruling in May 2023 about the admissions policy at the elite public high school in Virginia may provide a vehicle for the U.S. Supreme Court to flesh out the intended scope of its ruling Thursday, June 29, 2023, banning affirmative action in college admissions.
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Over a sharp dissent by two justices, the U.S. Supreme Court on Tuesday declined to take up a challenge to the admissions plan for a highly selective K-12 magnet school in a case that many conservative legal advocates had hoped would be the next step after the justices last year outlawed race-based admissions in higher education.

The court declined to hear the case involving Thomas Jefferson High School for Science and Technology in Alexandria, Va. A group advocating for Asian American students had sought review of a decision by the U.S. Court of Appeals for the 4th Circuit that upheld the Fairfax County school district’s revised admissions policy for the acclaimed magnet school on the basis that there was no illegal racially disparate impact on the Asian American students.

Justice Samuel A. Alito Jr., in a dissent joined by Justice Clarence Thomas, criticized the Richmond, Va.-based appeals court’s decision in harsh terms.

“What the 4th Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe,” Alito said in his dissent from the court’s denial in Coalition for TJ v. Fairfax County School Board. “This reasoning is indefensible, and it cries out for correction.”

Replacing admissions tests with a ‘holistic’ plan

The 2020 admissions plan for the magnet school was facially race-neutral but was adopted by the Fairfax County district to boost racial diversity among the enrollment.

The plan was challenged as a violation of the 14th Amendment’s equal protection clause. The challengers argued that the district aimed to increase white and minority enrollment at the school known as TJ, which before the new plan had an enrollment that was more than 70 percent Asian American.

“The board did away with the longstanding admissions exams and replaced them with a ‘holistic’ evaluation, complete with a middle-school quota and a points system that rewarded non-academic ‘experience factors’,” the challengers said in their Supreme Court brief, noting that Asian American enrollment fell to 54 percent under the new plan.

A federal district court had ruled for the plaintiffs, finding that changes in the admission plan were motivated by racial discrimination.

“The discussion of TJ admissions changes was infected with talk of racial balancing from its inception,” and “emails and text messages between board members and high-ranking [Fairfax County Public School] officials leave no material dispute that, at least in part, the purpose of the board’s admissions overhaul was to change the racial makeup [of] TJ to the detriment of Asian-Americans,” U.S. District Judge Claude M. Hilton of Alexandria said in his February 2022 decision.

A panel of the 4th Circuit voted 2-1 to reverse Hilton and uphold the Fairfax County plan in May 2023, before the Supreme Court ruled in the college affirmative action case in Students for Fair Admissions v. President and Fellows of Harvard College.

The appeals court majority said there was no racially disparate impact on Asian American students under the new policy, and that low-income Asian American students had experienced increased admissions to TJ under it.

“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,” the 4th Circuit court said.

The Pacific Legal Foundation, in its Supreme Court appeal for the challengers, noted that there are similar cases challenging magnet school admissions policies in Boston, New York City, and Montgomery County, Md., involving the racial balancing of student enrollments to the detriment of Asian American students.

“Coming as it does on the heels of last term’s decision curtailing racial discrimination in higher education admissions, this is one of several ongoing challenges to competitive K-12 admissions criteria that seek to accomplish a racial objective ‘indirectly’ because it ‘cannot be done directly,’” says the appeal, pointedly quoting from the majority opinion in the Students for Fair Admissions decision.

“Such policies raise the question of whether racial balancing is any less patently unconstitutional when it is done through ostensibly neutral criteria rather than explicitly racial classifications,” the Coalition for TJ’s appeal said.

The Fairfax County school district said, in its response brief, that every applicant to TJ is evaluated on an individual basis and the new admissions policy “was not designed to achieve any sort of aggregate racial balance.”

There was no evidence supporting the challengers’ “reckless charge that the [school] board changed TJ’s admissions policy for the purpose of discriminating against Asian Americans,” the board’s brief said. “To the contrary, the numbers of Asian-American students from poor families and less affluent areas of the county who obtained admission to TJ under the new policy was orders of magnitude higher than under the prior admissions system.”

Some presumed internal debate among the justices

The Supreme Court considered the case at five private conferences before taking action on Feb. 20. Some court observers expected the justices might send the case back to the 4th Circuit to reconsider in light of the affirmative action in higher education decision.

Alito’s 10-page dissent from the denial of review outlined the background of the case in some detail. He noted Thomas Jefferson High’s recognition as one of the best high schools in the nation by U.S. News & World Report Magazine.

“Asian-American students, many of whom are immigrants or the children of immigrants, have often seen admission to TJ as a ticket to the American dream,” Alito said. But “their strong representation in the student body attracted criticism from education officials” in the district, Alito noted, citing an email from a board member who expressed concern about the underrepresentation of Black and Hispanic students at the school.

Alito said the district court had faithfully applied Supreme Court precedent about challenging government policies that allegedly discriminate on the basis of race. But the 4th Circuit “completely distorted the meaning of disparate impact,” he said.

“Even though the new policy bore more heavily on Asian-American applicants (because it diminished their chances of admission while improving the chances of every other racial group), the panel majority held that there was no disparate impact because they were still overrepresented in the TJ student body,” Alito said. “That is a clearly mistaken understanding of what it means for a law or policy to have a disparate effect on the members of a particular racial or ethnic group.”

Alito said that if the district judge’s evaluation of the evidence was correct, the 4th Circuit majority’s “fallacious reasoning works a grave injustice on diligent young people who yearn to make a better future for themselves, their families, and our society.”

He said the 4th Circuit’s reasoning had the potential to spread like a “virus” and had already been cited by the U.S. Court of Appeals for the 1st Circuit, in Boston, in a decision last year that upheld facially race-neutral admissions for Boston’s selective exam schools.

Alito said the Supreme Court majority’s “willingness to swallow the aberrant decision” by the 4th Circuit “is hard to understand. We should wipe the decision off the books.”

In a statement, Asra Nomani, a co-founder of the Coalition for TJ, said, “Today, the American Dream was dealt a blow, but we remain committed to protecting the values of merit, equality, and justice — and we will prevail for the future of our children and for the nation we love and embrace.”

Joshua Thompson, a lawyer with the Pacific Legal Foundation, which represents the coalition, said in a statement that the “Supreme Court missed an important opportunity to end race-based discrimination in K-12 admissions.”

The Fairfax County school system issued a statement to say it was pleased to see an end to the three-year legal challenge to the TJ admissions plan.

“We have long believed that the new admissions process is both constitutional and in the best interest of all of our students,” Karl Frisch, the school board chair, said in the statement. “It guarantees that all qualified students from all neighborhoods in Fairfax County have a fair shot at attending this exceptional high school.”


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