Litigation Update: Coalition for TJ v. Fairfax County School Board

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Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an assistant director of practice groups with The Federalist Society. Today, we're excited to host a litigation update on Coalition for TJ v. Fairfax County School Board. We're joined today by Erin Wilcox. Erin is an attorney with Pacific Legal Foundation. Her practice is particularly focused on the 14th Amendment's Equal Protection Clause. Erin has previously worked for the Texas Public Policy Foundation, the District of Columbia Public Employee Relations Board, and has additional experience in business consulting. If you'd like to learn more about Erin, her full bio can be viewed on our website, fedsoc.org.

 

After Erin gives her opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we'll do our best to answer as many questions as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speaker and not The Federalist Society. With that, Erin, thank you very much for being here today and the floor is yours.

 

Erin Wilcox:  Thank you so much for having me, Sam. I'm so excited to come here and speak with all of you about the Coalition for TJ case. I thought I would start with just kind of a 30,000-foot overview about this case and then move into an explanation of what happened recently at the Fourth Circuit Court of Appeals. And then I'll end with a little bit of a preview. We are intending to file a cert petition on Monday and discuss a little bit about why we think this case is ready for the Supreme Court to review it and what this could mean for the future.  So then, I'll very much welcome your questions, would love to have a great conversation.

 

So some of you may be familiar with the Coalition for TJ v. Fairfax County School Board case, but a brief overview is that this began in 2020, and Thomas Jefferson High School for Science and Technology is one of the top ranked public high schools in the country. It's in Alexandria, Virginia, and it's an academic year governor's school. So it serves the best and brightest STEM students in the area. It's very competitive, and it has a very competitive admissions process. And up until 2020, TJ was about 73 percent Asian American. That was the demographic makeup of its incoming class. So very diverse, but unfortunately not the kind of diversity that the Fairfax County School Board, which oversees TJ, was looking for.

 

And a couple of things happened in 2020 that set off the chain of events that this lawsuit covers. And the first was that George Floyd was murdered in Minneapolis. And right on the heels of that, TJ announced its incoming class. And TJ admitted that year only six black students. And as you can imagine in Alexandria, that did not go over terribly well. And the school board set about changing its admissions policy with the specific intent to lower the number of Asian American kids who were admitted and to raise the number of black and Hispanic kids who were admitted. And they were wildly successful. By Christmas, they had enacted a new admissions policy. They'd thrown out the objective standardized test that students had been studying to take that fall, and they substituted that with a 1.5 percent admissions quota, basically, for every middle school and with some holistic experience factors that benefited some students over others.

 

And our clients, The Coalition for TJ -- it's a grassroots group of parents and students and community members who thought that admission to TJ should be determined on merit, it should be determined on a kid's individual skills and ability and not their race. And we filed a lawsuit.  Pacific Legal Foundation represents the Coalition for TJ for free. We filed a lawsuit in district court challenging the new admissions policy as a violation of the Equal Protection Clause, and we won in the Eastern District of Virginia. There, the court found that the process to change the TJ admissions policy had been infected with talk of racial balancing since its very inception. The school board predictively appealed to the Fourth Circuit, and they sought a stay pending the appeal, which the Fourth Circuit granted. We went up to the Supreme Court on an emergency petition to overturn that stay. It was not granted, though we did get three justices indicating that they would have granted it. And then we went to the Fourth Circuit for the merits argument. And I think what I'll get into the most here today is the Fourth Circuit's opinion. And that's the opinion that we'll be challenging in our cert petition. So the Fourth Circuit ruled against us as probably not surprising to any of you who practice in the Fourth Circuit right now. But we did get a great dissent by Judge Allison Jones Rushing and the panel majority -- they found a few things that are notable. The first, they found that there is no disparate impact on Asian American students enacted by the TJ admissions policy.

 

Now, the TJ admissions policy in one year, just from the year before the new policy was enacted to the year after the policy was enacted, the admitted rate of Asian American students dropped 26 percent -- dropped 19 percentage points from 73 percent to 54 percent. And even though the school added extra seats and Asian American students were the only ethnic group or racial group that experienced a drop, but nonetheless, the Fourth Circuit panel majority found that there was no evidence of disparate impact. There was no evidence that the board's actions had bared more heavily on one group than another. And they disputed our way of calculating that disparate impact. They said that the right way to do that wasn't to measure it year over year. The right way to do it was to measure the group's success rate. So measure how many Asian American students were admitted versus those that applied, and then compare that success rate to the success rate of other racial groups. And as long as Asian American students had a higher success rate than other groups, then there could be no disparate impact. They also decided that they could stop at a disparate impact inquiry. There was no disparate impact, then there was no need to look at evidence of discriminatory intent. But those of you who litigate in this space are likely familiar with the Arlington Heights case, which is what the Supreme Court uses to evaluate when there is discrimination that is neutral on its face but may still nonetheless be discriminatory.

 

So Arlington Heights, of course, says that the inquiry doesn't begin and end with disparate impact. You have to actually look for intent, that's one thing, but you have to keep looking for other evidence of discriminatory intent. But the Fourth Circuit, not to be dissuaded, they said, they could have stopped there, but they didn't. They went on to evaluate discriminatory intent, and they found that the school board had not acted with any. In a pretty cursory review of the record, something the dissent called -- they refused to look past the admissions policy's neutral varnish. The panel majority found that there was no racial balancing evident in the school board's policy. They found that racial balancing means that there's a specified percentage, there's goals or quotas. And the TJ policy didn't have that.

 

The TJ policy says nothing about race on its face. That is very true. What it does instead -- it limits how many kids from each middle school can get into TJ. So where previously the admissions were just based on academic performance and performance on a standardized emissions test, and as many kids as scored highly could go regardless of what middle school they went to, now, only the top 1.5 percent of every middle school's eighth grade could go. So if your middle school previously sent 90 kids a year because you went to an academically advanced middle school and those are the kids most likely to go to a school like TJ, you could only send twelve kids now. And because Asian American students more often than not went to those academically advanced middle schools, they were impacted the most. But according to the Fourth Circuit, because that policy wasn't a defined quota or percentage, there was no discriminatory intent there. There's also kind of a cheeky little footnote that said that even if the board had intended to have racial quotas, they didn't succeed because they didn't perfectly hit their goal, which was to make TJ reflect the demographics of its surrounding community. To which I think we would argue that just because you didn't succeed doesn't mean you didn't try. But that's another matter.

 

But another thing the board did was it rejected the idea of zero-sum environment in a school admissions case. And what we mean by that is a policy to be racially discriminatory, to find intent, it has to be enacted because of, and not just in spite of its impact on a particular racial group. And the school board claimed that even if its policy would have lowered the number of Asian American students who were admitted to TJ, that wasn't their intent. Their intent was to help admit more black and Hispanic students. And we argued, of course, that admissions is a zero-sum game and that intending to admit more of one kid based on their race is an intent to admit fewer students based on their race. But the Fourth Circuit did not agree with that.

 

So moving on to the dissent by Judge Rushing, she really engaged with the factual record in a way that the majority didn't do. And that's really evident throughout her dissent, which we were thrilled about. And she found that the board, first of all, did intend to discriminate. She looked at undisputed evidence that, for instance, the board had adopted a resolution that TJ should look like the community that it is surrounded by. She said the board had or noted the undisputed evidence that the board had requested racial data from its staff while it was making its decision to change the admissions policy. And it used that data in deciding which form of the new admissions policy to adopt. It was reflected in the policy they ultimately chose.

 

The school board could have chosen a policy that took 1.5 percent of children based on the middle school they were zoned to, not to the middle school they attended. But because the board specifically wanted to target these advanced middle schools where many Asian American children are enrolled and those are schools where kids leave their zone schools and go to these special middle schools, they chose to apply that policy to attending schools, not zone schools. And Judge Rushing found that that was evidence of an intent to discriminate against Asian American students. And finally, she looked at just what she called the candor of board members' internal discussions. And in the record are a number of text messages and statements from board meetings and emails from school board members with statements like from their own mouth talking about how they could see that this process was discriminatory against Asian Americans and saying, "Asians are going to hate us, hate to say it, lol," things like that.

 

And whereas the majority glossed over this, Judge Rushing really found that that maybe was evidence of an intent to devise a process that disadvantaged Asian American students in particular. She also in her dissent found that you couldn't ignore the evidence of discriminatory impact. She says by any metric, there was a disproportionate impact on Asian American students. And she found particularly significant that the impact was only on Asian American students. In the results the next year, after TJ changed its admissions policy, no other racial group suffered a drop. Everyone else raised except Asian American students. It was a targeted strike. And under the majority's approach, significantly, she pointed out that if you are just looking at success rate and measuring that against the success rate of other racial groups, then the school board could openly discriminate against Asian Americans or any racial group. And as long as their success rate did not dip below that of any other racial group, there's no discriminatory impact, nothing to see here. And that, of course, is just contrary to the very foundations of our Equal Protection Clause and cannot be squared with it.

 

So she found a great problem with that, and she found that the before and after approach was perfectly consistent with Fourth Circuit precedent, specifically the McCrory v. NAACP case from just a few years ago. And most importantly, she also realized that disproportionate impact is not the sole touchstone in an Arlington Heights case. You have to look at evidence of intent, of contemporaneous statements, of legislative history, of all the evidence surrounding a case, because, of course, decision makers don't always broadcast their intent to discriminate. Ours did here a little bit, but usually they don't. And so all facets of what surrounds a decision are important, and Judge Rushing recognized that.

 

So happy to share that we are, on behalf of the Coalition for TJ, filing a cert petition on Monday challenging the Fourth Circuit's findings and where we feel that it's gone wrong against the Equal Protection Clause. I did want to say a special thank you, while I can, to the FedSoc members who supported us as amicus briefing in the Fourth Circuit and who are doing it again at the petition stage. So we really appreciate your support. Thank you for that. And, yeah, I think that's my quick and easy rundown of the TJ case and how we got here. And happy to fill in any gaps that I left or more details or answer any questions.

 

Sam Fendler:  Well, that's wonderful. Thank you so much, Erin, for giving us that brief overview. So we will now move into the Q&A portion of our presentation. Again, if you have a question, please enter it into the Q&A function at the bottom of your screen. Erin, I want to start with -- I mean, this is a very interesting case. It's been going on for multiple years. There's a lot of things to understand and to unpack from the district level to this recent Circuit Court opinion. But I want to start with what is likely the chief question for many Supreme Court watchers and members across the entire legal community.

 

You're seeking to take this case to the Supreme Court just after this huge decision in Students for Fair Admissions v. Harvard. A lot of people are wondering how influential this holding is going to be for high school admissions, for college admissions, even for hiring practices and diversity initiatives across a wide range of instances. And this case is situated in such a way that it could be very influential in answering that question of how the Students for Fair Admissions v. Harvard case will apply to all of these different circumstances, particularly because the Court advanced a race neutral reading of the 14th Amendment. So I'm wondering, and I don't know how much you can or cannot tell me, because the cert is pending, but I'm wondering if you could talk to me about your view of the Harvard decision, how you think it will apply here, and how your team will, or perhaps won't, but likely will incorporate it into your Cert petition.

 

Erin Wilcox:  Sure. That's an excellent question and definitely one that's at the front of our minds right now. There were a few elements in the Students for Fair Admissions decision that we think are really key to the issues at TJ and other cases like it that are pending across the country right now. And those were, at first, the opinion says that eliminating discrimination means eliminating all of it, and that means proxy discrimination, which is the term that we're using to cover what's happening at TJ, where the school board is using a race neutral proxy to achieve the same results as it would using an outright racial quota or qualification. And the second thing is the Court's kind of warning at the end of the majority opinion that what cannot be done directly cannot be done indirectly. And we think that speaks directly to this situation of proxy discrimination and kind of may signal that the Court's aware that this could be what colleges and universities try to pivot to once they're unable to use racial classifications in their admissions decisions. And finally there was the discussion of zero sum in the Students for Fair Admissions decision, which is directly applicable to what's happening in TJ. And this idea that if you provide a benefit to some applicants that necessarily disadvantages other applicants, you can't claim that you had no idea that that was going to impact the other applicants or that that was not any kind of knowledge. So I think there's some important things to glean from that case.

 

But equally, the Coalition for TJ case is really the vital next step following the Harvard and UNC decisions, because this issue of proxy discrimination, of race neutral policies that nonetheless are used to treat people differently based on their race, it's already here. It's not coming. It's not something that we need to watch or let percolate. It's here. It's happening. It's happening in competitive high schools around the country. It's happening in universities that don't use racial classifications. And schools are already looking to this Fourth Circuit opinion for ideas and how to achieve the same racial balance that they can't get in their old ways anymore.

 

The American association -- or the Association of American Law Schools a few weeks ago held a conference on just this, on what to do with admissions now that affirmative action is over. And it was, I think, the general counsel of the University of Michigan's Law School who was saying, look at this Coalition for TJ decision and review your websites and tell your faculty not to say anything that might sound like they're giving away what kind of proxies we're using. And it was just explicit. So the problem is there, it's happening, and the Students for Fair Admissions decision was a huge step, but it's not going to mean as much if colleges and universities can just kind of pivot to proxy discrimination and students are experiencing the same kind of racial discrimination that they were experiencing before.

 

Sam Fendler:  Erin, we have a great question that dovetails nicely from the audience. Very recently, I think, maybe three or four days ago, the Biden Administration published a Dear Colleague letter about this case and about affirmative action going forward. How do you think the Biden Administration guidance on affirmative action will influence your case?

 

Erin Wilcox:  I'm not sure how much it will influence our case, to be honest with you, but I think there were a couple things in it that were pretty troubling, and one was that it really danced around proxy discrimination and didn't outright say not to do it. I think that could be read as encouragement or certainly not prohibition. So I think that is evidence that the issue of proxy discrimination is alive. People are thinking about it, and the Departments of Justice and Education are not willing to wade into that fight and tell people not to do it. And I think another interesting thing was its encouragement of racial affinity groups. This idea that separating people by race, as long as it's okay for everyone to join, wink, wink, but is evidence that this idea of racial balance, of racial differentiation is still important to college administrators, whereas I don't know that will have any direct bearing on our cert petition or this case. I think it's both evidence that these issues are live issues that the administration is thinking about and that we need to be very concerned about.

 

Sam Fendler:  Erin, you're of course, intimately familiar with these opinions that just came out at the circuit court level, but I want to read a couple of revealing quotes from both the majority opinion and the dissent and get your view on the competing visions that they present. So this comes from the majority opinion. "Asian American students as a class, experience no material disadvantage under the new policies functioning. In fact, they do better in securing admission to TJ than students from any other racial or ethnic group." Now, from the dissenting opinion, "If a state enacts a policy with the purpose and effect of trimming down the success of one particular racial group to a level the state finds more appropriate, it has discriminated against that racial group." What do you think about these competing visions?

 

Erin Wilcox:  Well, I obviously agree with the dissent, but I think that's really at the heart of this case, honestly, at the heart of what do you believe the equal protection means? Do you think it means that you can be discriminated against as an individual as long as your group still does fairly okay? Or do you think that means that you have a right as an individual person to be treated as an individual and not as a member of your group? And the majority is saying the first thing. They're saying that kind of your individual identity doesn't matter. You have a group identity, and that group is all that matters. And that's wrong. That's just simply not our vision and not our view of the Fourteenth Amendment. And I hope that is shared by a majority of justices, or at least four of them on the Supreme Court when they evaluate our petition. But that's key to everything. It's just absolutely abhorrent to think that a school board could openly or not openly discriminate against a group of kids just as long as they don't do it too much, as long as they're not too successful.

 

Sam Fendler:  And to continue on this -- pulling this thread here, the majority seems to have -- the majority in this circuit court opinion, they seem to have a very specific view of this admissions policy, what it's trying to do, what it has done in effect. Do you think the majority's view is somewhat idiosyncratic, or is this a view that maybe is presented by other circuits as far as understanding disparate impact and discrimination? I mean, is the Fourth Circuit kind of out in their own wilderness here or is this something that you may see elsewhere?

 

Erin Wilcox:  They're not. I don't think they are, honestly and sadly. Other places where PLF has cases pending, like this -- one in New York City challenging changes to their specialized high school admissions and one in Boston regarding their exam schools. Those are still in the circuit courts and working their way up. But what we're finding is that, overall, the judges that have examined these cases seem to have a view that it's okay if -- benign discrimination is okay, that these school boards are trying to help. Their intentions are good, and they're willing to accept the explanation that this is done to foster socioeconomic diversity, this is done to foster geographic diversity. And even if it has some kind of a racial impact, that that's not the intent. And that's not enough to constitute discriminatory intent. In the places where we've tried this so far, that seems to be the prevailing view. I can't speak for every circuit. We haven't tried it in every circuit, of course. And that's really something that is important to correct, because as we know, benign discrimination is still discrimination regardless of good intentions or not. So that is certainly a problem that we're running into and a view that needs to be clarified.

 

Sam Fendler:  Erin, I want to pivot slightly and talk to you about the district level proceedings. We have a great question from our audience here. Our viewer asks, "Did the Fourth Circuit panel say that the trial court's findings of fact were clearly erroneous, or did the panel challenge the trial court's interpretation of the law?" One thread I want to pull here before you answer is, and you mentioned it a little bit in your presentation, but at the district court level, PLF recovered a lot of emails and text messages during discovery that were pretty damning. How did the circuit court navigate the finding of fact at the district level?

 

Erin Wilcox:  Sure. So the circuit court -- well, the circuit court just didn't weigh the facts that the district court found in the same way. They didn't agree with his interpretation, I suppose. So whereas the district court found the emails, the requests for racial data, the opaque process that was used to change this admissions policy, all is evidence of discriminatory intent, the Fourth Circuit majority just interpreted it differently. They found that as not probative. They found that as evidence of benign discrimination, basically, although they wouldn't have said it that way. And they didn't really engage with the record at all, which is something, I think, that makes the dissent so interesting is Judge Rushing really did. She has charts, she has graphs in her dissent, and she really went to the record, went to the facts, and these were undisputed facts by both parties. This was a case up on a motion for summary judgment. And so I think that's a real distinction between the majority and the dissenting opinions and makes that a very interesting question.

 

Sam Fendler:  Erin, I want to ask you next about amicus briefs that you have in the pipeline as you get ready to file for cert on Monday. We do have an audience member that's asking, if they want to file an amicus brief, how they can help. But also, I'm curious if there are any amicus briefs that have been filed that are in the works that you want to mention.

 

Erin Wilcox:  First of all, that's great. Thank you for your interest. My colleague Alison Somin, who I'd be happy to connect you with, is wrangling our amici. And those are due, I believe, 30 days after our brief is filed on Monday. So, yes, we've got a number of amici already who are helping out either writing their own briefs or on behalf of their organizations or who are volunteering to write for groups of parents who aren't able to write their own briefs. So it's been a great support. It was a tremendous help in the Fourth Circuit and especially helping us with the cert petition. I mean, you can't always address all of the issues that you'd love to or that are important. You only have a limited number of pages and words, so it's great to have this support. So anyone who is interested in helping out or submitting an amicus brief, certainly welcome to contact me. Welcome to contact Alison Somin, and we'd be very happy to help you.

 

Sam Fendler:  We have a couple of questions from our audience, Erin, about top ten percent laws, top ten percent plans. And I think the main question here that is shared by both of these viewers is if a win in this case would put these top ten percent laws or other race neutral policies in peril.

 

Erin Wilcox:  That's a great question, and it comes down to -- in my opinion, it comes down to the intent behind the law. I could easily see where you have a top ten percent plan or like the 1.5 percent middle school quota in this case where it seems race neutral and it should be unobjectionable. But if it's done with an intent to make it harder for certain groups of people to get in based on their race, then I think that could be questionable. I don't believe that question has come up before the court yet. That wasn't directly at issue in Fisher, I don't believe. But it's definitely going to be a question. It's going to come up, and I think that's an important one because the top ten percent plan is always raised anytime you discuss these issues. But certainly if it's done with an intent to discriminate, then I think it is fair game for an Arlington Heights challenge.

 

Sam Fendler:  Another great question from our audience here. Does the targeted recruiting element in the TJ case for the purpose of racial diversity run afoul of the Fourteenth amendment, in your opinion?

 

Erin Wilcox:  Targeted recruiting, I'm not quite sure I know what that is talking about, but targeted recruiting in general -- I know, for instance, that the Department of Education guidance document talked a little bit about that. And that's, I think, going to be another issue to explore is, if you're targeting certain racial groups for, for example, pipelines or programs that you then recruit from, that's a tricky area. And again, I think you have to look at the intent behind the recruiting and is it being used as a proxy for race? If it is, if it's keeping students in or out because of their race, then I think that's a problem.

 

Sam Fendler:  Erin, I want to ask you about the politics that are involved here. Much of this new policy, if not all of it, I don't think we'll ever know, is rooted in the frenzy that was the summer of 2020. The school board was pushing the ideology of equity, in particular the brand made famous by Ibrahim X. Kendi, who was actually himself involved in some of this one way or another because he had that moment where he spoke to the school board or whatever presentation he did. It was an ideology that was widely, perhaps blindly accepted in 2020, but it's fallen out of favor today, or at least Americans of a range of political ideologies are more skeptical about it today. How do the politics weave into the legal case here? Are they inextricably linked? Do you find that they're involved in any of the briefing on your side or from the school board? What's your opinion on the whole view there?

 

Erin Wilcox:  Sure. I think this ideology, well, it absolutely motivated the case in the first place. It is certainly the reason that the school board took the actions that it did. They made no secret of it. That was in it from the beginning. So certainly that was a major player. It's been in everyone's mind, and that was part of the motivation of why they changed this policy and that's legally relevant to their decision making and whether they acted with discriminatory intent. It's certainly also been in the topic of a lot of the amicus briefing for the other side in the Fourth Circuit, and I would expect it again in the Supreme Court level as well. This idea of racial justice in schools, this idea of students needing to have more racially balanced schools to learn better or feel safe, or the educational benefits that allegedly flow from that. So it's not been central to the legal argument, but it is certainly in the atmosphere of this case. It's certainly being discussed by amici and is certainly the motivating factor of the Fairfax County School Board, why they're continuing to fight this and those who support them in their community.

 

Sam Fendler:  Erin, I saw that you were featured in it, which is great, but Pacific Legal Foundation put together a wonderful short documentary that's published on your YouTube channel about -- maybe close to a year ago titled Fortune in the Book. I think it's great anytime cases like these have accompanying videos, documents, stuff like this to make the case more accessible to people, to make it more enjoyable, perhaps, to consume. I'm wondering if you wanted to talk about that video, other documentaries you put out, any supporting case material that you think people should consume or pay attention to?

 

Erin Wilcox:  Yes, thank you for mentioning that. It's a great documentary put together by our team here at PLF, and you can find it at pacificlegal.org along with documentaries that were made about some of our other K-12 equality cases. There's a wonderful one about our New York City case called Dream Factories. It's really powerful and inspiring. And one about a Hartford, Connecticut case called Quota. I recommend them both to you guys. They're available on YouTube as well. But Fortune in the Book is really the story of our clients. And clients are kind of at the heart of everything we do at Pacific Legal Foundation and at public interest firms in general. They drive us, they inspire us, they're the reason we're here.

 

And our clients in this documentary talk a lot about why they care so much about TJ and why they care so much about being treated equally. And for many of them of Asian descent, you know, they came from countries that didn't value the individual, and they came to this country because they can work hard, and that work is rewarded, and that's what they're instilling in their kids. And so to see a situation like TJ that tells their children that hard work doesn't matter and who you are as an individual doesn't matter, it all matters about your group, your racial group, and something you can't change, that just fundamentally hit a note with them.

 

And I've had clients tell me, and they may say this in the documentary, that it's not something they're comfortable doing. Standing up and being a public interest client is not easy. It's a long process. You're in the public eye. You're certainly not the most popular person at your PTA meetings. But they felt that this was so important and so worth it that this is why they stood up and why they're still fighting with us two years later. And I think that this video is a really good insight into why this is important and why our clients fight for what they do and what's at stake. So I would definitely recommend this mini documentary. It's, I think, 12, 14 minutes to you guys, as well as Quota and as well as Dream Factories. They're just a great look and a great perspective at why cases like this matter and the people that make them happen.

 

Sam Fendler:  Erin there was a short portion of the Fortune in the Book documentary that focused on the domestic terrorism issue that, of course, was newsworthy in Northern Virginia at the time. Some of the TJ parents clearly feel affected by that issue with the DOJ, with the FBI. I'm curious how has that affected the case? What's the legacy of that been? How are the clients doing with that issue? How has that developed?

 

Erin Wilcox:  The legacy of that statement is that it has inspired our clients even more. It has made them even more determined to stand up and speak and fight for their kids and their education and their right to speak. You may see it in the video, but one of our clients, Azra Nimani, actually had a t-shirt made that says, "I'm not a domestic terrorist," or "I'm a mom, not a domestic terrorist." So, you know, they have kind of a lighthearted view of it, but also deadly serious that this is exactly why they are involved in this case. And joining school boards and running for office and becoming active. And you're seeing that all over the country. You're seeing it in the school board recall in San Francisco last year, where San Francisco had a very well regarded, wonderful high school called Lowell High School that had a competitive admissions policy, and the school board changed it to a lottery and tried to destroy the school because they didn't like the racial composition of that school.

 

And the Chinese American community, largely in San Francisco, came together and recalled three school board members over that. I don't think San Francisco had recalled a school board member in like 100 years.  So that's the magnitude of what we're dealing with and how upset parents are and how ready they are to fight. And I think it helps to remember that this came about in the middle of a pandemic. People were having to do this over Zoom and text messages. Nobody was able to get together. You had socially distanced rallies in front of the school to protest. This is hard. And these are parents who have day jobs. They have kids, they have other things to do. And it is this important to them that we stand up for this right to equality and to be treated as individuals and not members of a racial group. And so I think that's just really remarkable, and that's a lesson that we've all taken from their courage and their inspiration.

 

Sam Fendler:  Erin, another question from our audience, if you know the answer. How many cases like TJ are ongoing? Are you aware of that? And if so, do you know what jurisdictions they're in? Are the facts similar?

 

Erin Wilcox:  Sure. So we have got four cases right now, including TJ. Another case involves a magnet middle school or magnet middle school program in Montgomery County, Maryland. So just across D.C. from that. There's also a challenge -- sorry. And that case is at the Fourth Circuit right now as well. It's kind of waiting on the outcome of the TJ case. We have another case that's on appeal in New York City in the Second Circuit, and that challenges then Mayor DeBlasio's attempts to make changes to the school's specialized high schools' admissions program. And that case is moving along, I think. I'm trying to remember where it is now, but pretty, again, in that case, you have extremely blatant comments about stuff like no racial group owns these schools and explicit desire to lessen the number of Asian American kids who go to those schools. And the fourth case is in Boston and their exam schools where the city attempted to use zip codes as a proxy for race. And again, we have school board members caught on hot mics making fun of Asian American last names for speakers who came to speak at school board meetings and saying that they hate white people in these neighborhoods. And a judge there actually found that even given that, there wasn't evidence of discriminatory intent.

 

So these cases are -- it's just kind of overwhelming evidence that this is happening. And those are just the ones that we know about and have been able to take to this level. So you know it's happening in a number of other schools. And the thing to remember about proxy discrimination is, again, it's not said out loud, usually it's a proxy, it's quiet. And so it's really important, I think, for parents out there and community members to be paying attention to what your school board is doing and what they're saying and what they're not saying, because this is getting more and more prevalent. And the only way that lawyers like us hear about it is by parents who are alert and are on the ground. We go out looking, but we don't have your access. So it's an important issue, and it's -- just as evidenced by these four cases and knowing that there could be so many more out there that we're hoping TJ can put into with the Supreme Court.

 

Sam Fendler:  So speaking of the Supreme Court, Erin, I wanted to ask you about that next. I know that you're going to be a strong advocate for your clients and for your position. For me as trying to be an objective third party looking at the case, it seems as though there will be a very strong Fourteenth Amendment argument for you to make in wake of the Harvard case. The forecast seems to be bright. I'm wondering, what is your forecast of the way forward?

 

Erin Wilcox:  Well, we are very hopeful that the cert petition will be granted, especially because, as I mentioned at the beginning, we filed an emergency petition to try to halt the stay that the Fourth Circuit granted. And while we didn't get it, we did have three justices indicate they would have granted it. So we think that shows significant interest, and hopefully we just need one more justice to take an interest in this case. We think it's different enough. It's different from Harvard. This is not an outright discrimination case. This is a proxy case. We think it's timely, as shown by the evidence of what's happening in TJ and what's happening in those other schools we mentioned, and how colleges and universities are discussing how they're going to accomplish this next. You know, I'm optimistic. I think every third person I talk to this case about in D.C. certainly is like, "Aren't you going to get GVRed?" So we are trying to remain optimistic in the face of that, and that certainly could happen. But I think that the outlook is really positive for this case, and we're really excited to see what happens.

 

Sam Fendler:  Well, that's great. Erin, we're slowly approaching the top of the hour, but we've covered a lot of ground. We have no pending audience questions here. I think we've done a great job discussing the district court level, the circuit court level, your thoughts on what comes next at the Supreme Court. I'm wondering if you have any final thoughts that you want to share with the audience.

 

Erin Wilcox:  No, just thank you so much for your interest in this case and for supporting this case. Again, thank you to our amici. And if you are interested in getting involved, please feel free to reach out to me or my colleague, Alison Somin. And please do take a look at pacificlegal.org. You can learn more about this case. You can learn more about the other K-12 equality cases I mentioned, and you can check out those wonderful documentaries that our team made that will probably not make you cry, but I can't make any promises.

 

Sam Fendler:  That's wonderful.  Well, Erin, on behalf of The Federalist Society, I want to thank you very much for the benefit of your time and your expertise today. I want to also thank our audience for joining us. We greatly appreciate your participation. Please check out our website fedsoc.org or you can follow us on all major social media platforms @FedSoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in and we are adjourned.