The Supreme Court ruled in Students for Fair Admissions Inc. v. President & Fellows of Harvard College that “an individual’s race may never be used against him in the admissions process.” Even before that decision, admissions offices began using ostensibly race-neutral programs to circumvent this prohibition. However, the Supreme Court appears hesitant to intervene: last week, it declined to review a challenge to the admissions criteria at Thomas Jefferson High School for Science and Technology (TJ).

TJ consistently ranks as one of the top public high schools in the nation. The Fairfax County School Board (Board) oversees TJ’s admissions process. Before 2020, admission was based on a competitive process, which included three standardized tests.

Following George Floyd’s death, Board members expressed displeasure with the student body’s lack of racial diversity. Board member Karen Keys-Gamarra decried the “unacceptable numbers of African Americans.” Ultimately, the Board adopted an admissions policy allocating a number of seats to each participating public middle school equal to 1.5% of its eighth-grade student population. Within each middle school, students are evaluated using several factors, including grade point average and “Experience Factors.” Standardized tests are no longer administered. The remaining seats are open to all applicants and awarded based on the same criteria. Each applicant is only identified by an applicant number.

Following the policy’s implementation, the share of Asian-American students in the entering freshman class dropped from 73% to 54.36%. Parents, fearing the Board had pushed its agenda at the expense of their children, formed the Coalition for TJ and filed suit, represented by the Pacific Legal Foundation (PLF). 

The district court ruled the policy violated the Fourteenth Amendment’s Equal Protection Clause. A race-neutral policy violates the Equal Protection Clause if it (1) disproportionately impacts one racial group and (2) was adopted with discriminatory intent. The court determined the drop in admittance of Asian-American students evidenced a disparate impact with invidious discriminatory intent because Board member communications established that “the purpose of the Board’s admissions overhaul was to change the racial makeup to TJ to the detriment of Asian-Americans.”

On appeal, the Fourth Circuit reversed. The majority concluded TJ’s admissions policy did not disparately impact Asian-American students because they still were more successful in attaining admissions than other racial or ethnic groups. The court rejected a year-over-year analysis as turning “the previous status quo into an immutable quota.” Dissenting, Judge Rushing criticized the majority for creating a new test permitting blatant discrimination. The majority’s test would tolerate purposeful discrimination, so long as the targeted group was still more successful than other racial groups. The Coalition petitioned for certiorari.

The Supreme Court denied the petition. Justice Alito, joined by Justice Thomas, issued a ten-page dissent, decrying the opinion below as “indefensible” and warning that the Fourth Circuit’s erroneous opinion would justify future discrimination. Indeed, the First Circuit had already cited the Fourth Circuit’s opinion in upholding an admission policy for Boston’s selective high schools; that policy awards seats to students by ZIP code, which, when implemented, similarly resulted in a sharp decline in Asian-American students admitted. PLF is also challenging the Boston policy. 

Thus, the Supreme Court declined to clarify when race-neutral methods, if adopted for racial purposes, may violate the Equal Protection Clause.

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