Renu Mukherjee Supreme Injustice The Supreme Court declines to hear a case about an admissions policy adopted in defiance of its affirmative-action ban.
https://www.city-journal.org/article/did-scotus-green-light-racial-discrimination
The Supreme Court announced yesterday that it would not hear Coalition for TJ v. Fairfax County School Board, a case concerning revised admissions policies at Thomas Jefferson High School for Science and Technology, an elite magnet school in Alexandria, Virginia. The school has adopted a new admissions policy that, while race-neutral on its face, effectively penalizes Asian American applicants. The Court’s denial of certiorari practically endorses efforts to discriminate against Asian American students and may lead other schools to follow suit.
Before 2020, TJ’s admissions process was strictly merit-based. Any student who had completed or was enrolled in Algebra I and held at least a 3.0 grade point average was eligible to apply. Applicants were required to take a standardized test, similar to the SAT/ACT, and those with the highest scores advanced to the process’s second round, in which they had to submit two teacher recommendations and complete three writing prompts and a problem-solving essay. TJ’s class of 2024 (the last admitted under the old, merit-based system) is 73 percent Asian, 17.7 percent white, 3.3 percent Hispanic, and 1 percent black.
The high number of Asian American students at TJ—and the correspondingly low number of black and Hispanic students—troubled education officials in Fairfax County. TJ principal Ann Bonitatibus, for example, said in October 2020 that she wanted a student body that “more closely aligns with the representation in Fairfax County Public Schools.” One school board member wrote in an email that she was “angry and disappointed” with TJ’s racial makeup. Other education officials in Fairfax County stated that TJ’s entrance exam had led to too many “students who had been in test prep since second grade.”
Apparently in response to these objections, the school board crafted a new admissions policy in December 2020. The new scheme limits how many students each area public middle school can send to TJ (the equivalent of 1.5 percent of its eighth-grade enrollment). It also calls for applicants to be evaluated on several criteria, including GPA; a “portrait sheet” where they must demonstrate “graduate attributes” and “21st century skills”; a problem-solving essay; and “experience factors.” These “experience factors” include whether a student is economically disadvantaged, an English language learner, participating in a special-education program, or attending an underrepresented middle school. Notably, the school board struck the standardized-testing requirement.
TJ’s new admissions policy achieved its intended effect: Asian American enrollment fell dramatically. The Class of 2025 (the first admitted under the new system) is 54.36 percent Asian, 22.36 percent white, 11.27 percent Latino, and 7.9 percent black. Asian Americans, in other words, were the only racial or ethnic group to lose seats at TJ after the policy change, seeing their enrollment decline by almost 20 percentage points.
The results of the new policy prompted a group of parents, students, and alumni—many of them Asian immigrants or the children of Asian immigrants—to sue the Fairfax County School Board. The group, Coalition for TJ, alleged that the magnet school’s change in admissions policy was motivated by racial discrimination violative of the Fourteenth Amendment’s Equal Protection Clause.
The U.S. District Court for the Eastern District of Virginia agreed with the Coalition’s argument. “The discussion of TJ admissions changes,” the court held in February 2022, “was infected with talk of racial balancing from its inception.” Internal communications, the court added, “between board members and high-ranking 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.”
In May 2023, however, the Fourth Circuit reversed the district court’s decision. The circuit court held that TJ’s adoption of its new admissions policy did not have a disparate impact on Asian American students because, at 54.36 percent, such students still constitute a majority of the Class of 2025 and are “overrepresented” in the student body. As Judge Allison Rushing, who dissented from the panel majority, put it: “In the majority’s view, governments are free to pass facially neutral laws explicitly motivated by racial discrimination, as long as the law’s negative effect on the targeted racial group pushes it no lower than any other racial group.”
The circuit court’s ruling drew the ire of at least some of the Supreme Court’s conservative justices. Justice Samuel Alito, joined by Clarence Thomas, dissented from the Supreme Court’s refusal to hear the case, claiming that the Fourth Circuit held 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 called the circuit court’s ruling “indefensible” and added that SCOTUS’s refusal to grant certiorari was “hard to understand.”
I find it less surprising. While six justices, including Thomas and Alito, voted in last term’s Students for Fair Admissions v. President and Fellows of Harvard College to strike down the use of racial preferences for blacks and Hispanics in university admissions, the decision said nothing about admissions policies that are race-neutral in theory but designed to discriminate against a particular racial or ethnic group in practice. In fact, the decision, authored by Chief Justice John Roberts, seemingly green-lighted such policies: “At the same time, nothing in this decision should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” We should not be surprised, then, that the other six justices declined to take up Coalition for TJ. Those justices simply are not ready to enforce the Court’s holding in Students for Fair Admissions: “Eliminating racial discrimination means eliminating all of it.”
The Court’s reluctance to enforce its ruling is a shame for those who believe in America’s promise of equal protection. It also means that Students for Fair Admissions, at least for now, is toothless. As Alito noted in his dissent from the Court’s denial of certiorari, other selective public high schools, along with some colleges and universities, have cited TJ’s new admissions policy as an example of how racial proxies can be used to evade the Court’s affirmative-action ruling. As such policies proliferate, Asian American students will continue to be harmed.
Still, all hope is not lost. In his dissent, Alito cited Boston Parent Coalition for Academic Excellence Corp. v. School Committee for Boston, another case challenging a selective public high school admissions policy that is facially neutral but anti-Asian in effect. Pacific Legal Foundation, the public-interest law firm that represented Coalition for TJ, is representing a similar group called the Boston Parent Coalition for Academic Excellence. The law firm shared in a press release yesterday that it will soon ask the Court to take up that case.
Moreover, despite denying certiorari in the TJ case, at least some members of the Court seem to recognize that these policies infringe on the civil rights of Asian Americans. Alito’s dissent, for example, highlights the policy’s effect on Asian enrollment at the magnet school. Indeed, Alito suggests in his dissent, if the victims of TJ’s policy were black instead of Asian, neither the Court nor the public would allow such discrimination to persist. He’s right.
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