Litigation Update: Coalition for Thomas Jefferson High v. Fairfax County School Board

Listen & Download

 
Thomas Jefferson High School for Science and Technology, or “TJ,” in Fairfax County, Virginia, is the nation’s top-ranked public high school. It’s also over 70% Asian-American. Until last fall, admission to TJ rested largely on a student’s performance on a race-blind standardized admissions test. Vocally displeased that the demographics of TJ’s student body do not match the demographics of its school district as a whole, the Fairfax County school board recently eliminated the standardized admissions test and instituted a new admissions system which the Plaintiff, Coalition for TJ, believes is designed to achieve the school board’s racial balancing goals. Under the new system, the Coalition for TJ projects that Asian-American enrollment—and only Asian-American enrollment—in the incoming TJ freshman class will drop by over 40%. 
 
Represented by Pacific Legal Foundation, last month the Coalition for TJ filed a lawsuit in the U.S. District Court for the Eastern District of Virginia alleging that the school district’s new admission policy amounts to racial balancing in violation of the Equal Protection Clause of the Fourteenth Amendment. Against a backdrop of perceived increased anti-Asian bias and concerns over equity in admissions in secondary and higher education, Coalition for TJ v. Brabrand offers the chance to discuss whether school districts are attempting to racially balance public schools and why the facts of the Coalition for TJ case make it a particularly good vehicle for a strategic challenge. 
 
Featuring: 
 
Erin Wilcox, Attorney, Pacific Legal Foundation 
 
 
Teleforum calls are open to all dues paying members of the Federalist Society.  To become a member, sign up on our website.  As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number.  If you are not receiving those email annoucements, please contact us at 202-822-8138.  
 

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, April 29th, we discuss the litigation update on Coalition for Thomas Jefferson High v. Fairfax County School Board. My name is Evelyn Hildebrand, and I am an Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today we are fortunate to have with us Erin Wilcox, who is an attorney at Pacific Legal Foundation. After our speaker gives her opening remarks, we will turn to you the audience for questions so be thinking of those as we go along and have them in mind for when we get to that portion of the call. With that, thank you for being with us today. Erin, the floor is yours.

 

Erin Wilcox:  Thank you so much. As Evelyn said, my name is Erin Wilcox, and I am an attorney with the Pacific Legal Foundation. For those who may not be familiar with PLF, we are the nation's oldest public interest law firm dedicated to defending individual liberty. And the particular corner of individual liberty that I focus on is the Equal Protection Clause and particularly as it relates to K-12 public education.

 

      Today I am really excited to talk to y'all about a lawsuit that PLF recently filed in the U.S. District Court for the Eastern District of Virginia in Alexandria. And that lawsuit is called Coalition for TJ v. Brabrand. Right now the lawsuit is at the preliminary injunction stage. We filed the P.I. motion last week and actually just a few minutes ago, received the defendant's motion to dismiss, and both have hearings set for May 21st. So this case is really starting to heat up and get exciting.

 

      Some background. TJ is the nickname for the Thomas Jefferson High School for Science and Technology which, by the way, is currently the top ranked public high school in the nation. U.S. News & World Report actually just published this year's rankings and TJ was number one again so everyone's very excited. TJ is located in Fairfax County, Virginia, and its goal and mission is to provide a top-notch education for students who are gifted in STEM, so science, technology, engineering and math. Up until this year, admission to TJ revolved around a nationally norm standardized test. Applicants did also have to meet some eligibility requirements that involved residency, GPA, and math pre-requisites, but the TJ test was the largest factor.

 

      And something else that is important to know about TJ is that its student body is about 80 percent non-white. Around 70 percent of those non-white kids are Asian-American. Those kids are kind of lumped together as Asian-American in all the demographic data. But there is a ton of diversity within that figure. TJ's Asian-American student families come from over 30 countries, from Korea to India to the Philippines. And the other 10 percent of those non-white students are black, Hispanic, or two or more races.

 

      Despite the fact that TJ is pretty diverse, the Fairfax County School Board was not satisfied with the demographics of TJ and, to put it bluntly, they appear to have felt that there were too many Asian-American students and not enough black or Hispanic students at TJ. So this past fall they decided to revamp the admissions policy so that fewer Asian-American students, and only Asian-American students, are likely to get in.

 

      Our clients are a group of concerned parents and community members called the Coalition for TJ and they believe that this kind of racial balancing violates the Equal Protection Clause of the Fourteenth Amendment. PLF filed a lawsuit on their behalf this past March. And this is an Arlington Heights claim where we argue that even though the new TJ admissions policy is facially race neutral, and it is and we don't dispute that, but it was enacted with a racially discriminatory purpose and must be struck down.

 

      And, you know, the Fairfax County School Board is not stupid. They didn't enact a plan that says, "From now on, each TJ freshman class will be 20 percent black and 20 percent Hispanic and 20 percent Asian-American, and so on and so forth." That would be an outright racial quota and that would be immediately suspect. So instead they resorted to more covert means and that's something that's becoming very popular in the world of specialized public schools. Under these kind of plans, the school district uses a proxy, often geography, instead of race, but that will have the same outcome as a straight-up racial quota. And again, this isn't anything new or revolutionary.

 

      Several years ago, the Mayor and the Chancellor of the New York City schools decided that there were too many Asian-American students getting into New York City specialized type schools like Bronx Science or Stuyvesant and changed some policies to effectively close off a number of seats to Asian-American students. And again, that was not an outright ban on Asian-American students. There wasn't an outright quota, but the effect was the same. And this is happening in other places like in Montgomery County, Maryland with their magnet middle schools, or with the exam schools in Boston.

 

      So at TJ the School Board eliminated the baseline admissions test and the month before it was supposed to take place, by the way. So you can imagine how many angry eighth graders there were out there who had been studying for months for that. And then the Board waited for two months to announce what would take its place. And what they came up with was a system that limits eligibility to TJ to the top 1.5 percent of each middle school eighth grade class and then applies a holistic rubric to determine who gets a seat.

 

      And on the surface this 1.5 percent quota might sound okay, but in effect, there are a handful of middle schools where Asian-American students are clustered and which have a history of spending a high number of students to TJ. So in one fell swoop, a school that usually sends 80 to 90 kids to TJ per year is now limited to something like 12, which would be 1.5 percent of its eighth-grade class. 

 

      The parents that make up the Coalition for TJ do include some very good data analysts and they project that this change could result in a drop in Asian-American student enrollment from 73 percent in the current freshman class, which was admitted under the old system, to 31 percent in the next freshman class which will be admitted under the new system. That's a big drop, to be sure. But as I said earlier, this type of manipulation to racially balance schools is happening in a lot of places and disparate impact alone is not enough to trigger heightened scrutiny.

 

      So what makes TJ a particularly good choice for strategic litigation. Two things:  first, in addition to the evidence of a significant disproportionate impact on Asian-American students, we also have particularly strong evidence of a discriminatory purpose; and two, we have some very involved and very motivated clients.

 

      So to the discriminatory intent point, school officials in this case spent the entire last summer and fall talking about how much they wanted to racially balance TJ. Our complaint cites numerous examples of the TJ principal, the superintendent, various school board members saying stuff like, "The demographics of TJ should match the demographics of Fairfax County as a whole." Or flinging out what our clients perceive to be anti-Asian stereotypes of tiger moms, and anti-Asian American racism towards the black community. Board members derided TJ students as being "test-prepped" since second grade, and made many, many references to TJ's "toxic culture."

 

      And it didn't even stop with just school district level officials. The Virginia Secretary of Education compared Asian-American students test-prepped for TJ to illegal performance enhancing drug, and a state delegate told a working group about the unethical ways that Asian-Americans "push their kids into TJ when those parents are not even going to stay in America but, instead, are using TJ to get into Ivy League schools and then go back to their home country." That's some pretty heavy and inflammatory stuff.

 

      So, [inaudible 09:13] a discriminatory purpose is difficult. But we're hoping that with so much clear evidence from such a range of people, coupled with a substantial effect of the new admissions policy on Asian-American students, that will be enough to convince the court that the defendant's policy must have a stricter scrutiny.

 

      And I told you that the second thing that makes the Coalition for TJ vs. Brabrand such a great case is the involvement of passionate and motivated clients. And that is absolutely the truth. As lawyers, we are keeping tabs on situations like TJ, and we are reading school board transcripts but there is just no substitute for parents who are on the ground. Their living and their engagement and commitment is just invaluable. And at PLF we are so lucky to work with clients like this in many of our cases, and I would argue that it's not possible to litigate these cases or, at least not to do it well, without clients like this by your side.

 

      So finally, also I do want to say that I am the one who's lucky enough to be here presenting this case and talking to all of you. At PLF we litigate as a team and this case is certainly a team effort. So just wanted to say a quick thank you to my co-counsel Allison Somin, as well as Chris Kieser and Glen Roper, who may be on this call or may be stuck in a deposition, I'm not sure. But hopefully they're able to join us.

 

      So that's it for the Coalition for TJ v. Brabrand in a nutshell. I thank you so much for your interest in this case, and I welcome your questions.

 

Evelyn Hildebrand:  Wonderful. Thank you so much. At this point, I'll hand the floor over to our first caller.

 

Wen Fa:  Hi Erin. This is Wen Fa also from Pacific Legal. I was wondering if you could talk a little bit about, you mentioned earlier that this is something that's prevalent in, not just in Virginia, but also in other parts of the country as well. And, as I understand it, PLF has been litigating this issue in courts all across the country. So I was wondering if you could touch upon some of the other cases and why there is this sort of trend where the government makes discriminatory statements against Asian-Americans and then what they do after they make those discriminatory statements.

 

Erin Wilcox:  Absolutely. Hi, Wen, and thank you for your question. And yes, I did mention there are several other cases across the country, and one of them, very excitingly, is in New York City. I think I touched a little bit on that, and that's a case where Asian-American students have just been killing it with admissions to these top high schools like Stuyvesant and like Bronx Science.

 

      And, by the way, these are largely working class Asian-American students. These are not rich kids whose parents are paying for them to get into these elite schools. These are kids whose families are sacrificing a lot and who believe very strongly that education is the key for their children to accelerate and move up in this world.

 

      And there are statements that are just kind of unbelievable until you read them, and I believe it was Mayor DeBlasio in New York City who said that, "No one owns these schools," meaning that Asian-American students don't have a right to go to these high schools in New York City. And that's just unbelievable. Anybody who works hard has a right to compete on an equal footing to go to these schools.

 

      And the same thing in Montgomery County, Maryland. There it's happening at the middle school level. Montgomery County has got several really exceptional middle school magnets, and, in that case, the school board actually hired in a consulting firm and paid them many hundreds of thousands of dollars to figure out the best way to racially balance their schools because they feel that too many Asian-American kids are getting in. And the same kind of focus in their talk on race and racial motivation. And I think at one point someone from their school [inaudible 13:22] said, "Well, why can't we just automatically consider race? Why can't we just judge it that way?"

 

      And so it's hard to know why people are so emboldened to make these statements. I think certainly the rise of critical race theory and the rise and just this belief that the government should be in charge of everything, and the government should decide who gets to do what and who gets the best and who gets the burdens. And less of a belief that individuals have merit and that individuals should get what they get based on their talents and abilities.

 

      But yes, those are only just a handful of examples. We've seen what happened in San Francisco's Lowell High School where the just got rid of their advanced program all together. And I think the world is -- or the nation is watching TJ and they're watching New York to see what happens. So these are important cases. [Inaudible 14:15].

 

Evelyn Hildebrand:  Great. Thank you. Let's move to our next called.

 

Stephen Itaglu (sp):  Hello, Erin. This is Stephen Itaglu, and I'm an undergraduate student at Hillsdale College. I appreciate your talk. I just wanted to ask if you believe that there is anything substantial about this case in particular, and what larger impact you think that this case might be able to make towards anti-discrimination cases or any cases in the future.

 

Erin Wilcox:  Sure. That's a great question and thanks for listening in. I do think what's outstanding about this case is, as I said kind of earlier, the facts of this case. I think you normally don't find examples of school officials who are quite so open about how badly they want to use race to decide who should get to go to a school and who shouldn't. So I think that's certainly an excellent opportunity to kind of expose what is going on beneath the surface in a lot of other schools.

 

      But as far as the impact, we see this as a case that could go all the way to the Supreme Court, of course, as we see with the New York Case and our Montgomery County case, as well. But, really, it's time for the Court to kind of decide this question once and for all. This is diversity and compelling interest in K-12 education. And, of course, we argue it's not. And, of course, our opponent could say that it is, and they lean on Justice Kennedy's concurrence and parents involved. And so I really, this case is a great vehicle to finally get that question up to the court and ask them to turn it once and for all because that's what will put an end to these kinds of covert racial balancing quotas that we're seeing. So I think this case really does have an opportunity to impact this area of the law for a long time to come.

 

Caller 2:  Thank you, Erin.

 

Evelyn Hildebrand:  Great. Thank you. And we'll now move to our next caller.

 

Edward:  Hi. Thank you very much for having this. Personally, I don't think that such a thing like race even exists. And I wanted to preface that before I ask the next question to make sure that you understand where I'm coming from. This is Edward from San Diego, and the question I  have is, and maybe it's already been -- maybe I came in late, but how do we identify an Asian from a, let's say, a Pacific Islander, or somebody whose skin color is a little bit more like Asian than white, or something else like this? What are the defining characteristics? How do I know -- how would we know if the people who are -- if the racial balancing would really be successful or not? How will we know if they have succeeded if they don't know what -- if they don't have a definition for what an Asian looks like? Is there any litmus test for who's Asian and who isn't?

 

Erin Wilcox:  Edward, that is such a great point and I'm really glad you brought it up because that is something that's really important to understand in all of this is race in this context is just something the government came up with. Exactly. And the whole thing where at TJ, and this is not specific to TJ, but Asian-American is a demographic classification and that can mean anything. That could be -- well, not anything, but -- someone who is Japanese that may have a very different experience from someone who is Indian. And someone who is Indian has a different experience from someone who is Pakistani. And yet they are all lumped in together in this one racial category that the government has come up with. And that really just underscores the stupidity of that. It's meaningless. What matters are individuals and their accomplishments and their needs and their talents, and that's how they should be evaluated for everything from schools to jobs to everything else. Rather than being lumped in these meaningless categories that have no bearing on who they are or what they need.

 

      So that's an excellent point you raised. It just further shows the futility of this classification and why the focus should be on the individual and not on these categories the government came up with who knows how long ago.

 

Evelyn Hildebrand:  Great. Thank you, Erin. I'll turn the floor over now to our next caller.

 

Caller 4:  Yes. Good afternoon. Thanks very much. I am a little embarrassed to say that I don't remember the details about the procedural posture of the case that I'm thinking of or even if it was a case rather than just sort of an academic discussion. But I recall, I thought it was a Supreme Court case in which one of the Ivy League school's diversity program—I want to say it was Harvard—was challenged and the roots of it were traced back to anti-Jewish bias at the beginning of the 20th century. And if that was a case, if it hasn't been decided or if it was just an academic discussion, I'm wondering to what -- if I give you enough detail to be able to identify it if any of that has potential bearing on the resolution of this particular case.

 

Erin Wilcox:  Yes. Great question. And I do know what you're talking about. There's actually the Students for Fair Admissions v. Harvard case that is -- the cert petition has been filed by Students for Fair Admissions and is pending right now. So that is kind of the -- that's the hot Supreme Court case in this area of the law right now, so that's a very relevant topic. And it's slightly different than this case simply because it involves higher education and this case involves K-12, and the Court has distinguished between [inaudible 20:18].

 

      The Harvard case is going to, I think, have a significant impact on this TJ case and cases like it simply because in the Harvard case one of the arguments they are making is that race is not a factor in the admissions decision. It's not one of many. It is the single most determinative factor. If a student is Asian-American and applying to Harvard, their race is the indicator of whether they will get in or not. And, similarly, that's what's happening at TJ, and happening in New York and in Montgomery County. If a student is Asian-American, their race is the most significant determining factor of their ability to be admitted to that school. So while there is a slight distinction in terms of it being K-12 versus higher education, this is definitely -- the Harvard case will be a pivotal case and certainly one to watch as it's applied to these K-12 cases, as well.

 

Caller 4:  Great. And if I could just follow-up very briefly. So in terms of the potential grounds of distinction, obviously the Harvard case, you don't have public action, or at least as compelling public action. I would think in that instance, therefore, that your case would be more compelling because you're talking about public schools. Is that a fair assessment? Are there other grounds of distinction that you might see or…?

 

Erin Wilcox:  Our case does involve a public school, whereas Harvard accepts public funding. But I think, yeah, the key distinction really is just the fact that it is K-12 versus higher education in the court, and parents involved distinguished [inaudible 21:57] say that it's higher education of its own, its own special thing, it's its own arena and it has its own consideration. But I think the similarities probably outweigh the differences in terms of its relevance in this area, for sure.

 

Caller 4:  Great. Thank you very much.

 

Evelyn Hildebrand:  Wonderful. We'll now turn the floor over to our next caller.

 

Caller 5:  Hi. Thank you very much for your work on this case. So my question is this -- I probably beat you to the punch because I went on Pacer and I pulled up the motion to dismiss filed by Fairfax County and so I'm flipping through this and it's everything I know about the case, really. But they seem to be defending by saying this has nothing to do with race. It's completely race-blind what our admissions policy is. We're admitting people based on regional pathways to channel applicants for admission based on the location of their middle school. So I'm wondering if you would comment on that piece of their defense where they seem to be saying, "Oh, it has nothing to do with race. It just has to do with where you live and what middle school you went to." So that's my question.

 

Erin Wilcox:  Sure. And you do have one up on me because all I have had time to do with that is to very briefly skim it, so…  That's kind of the argument that we expected. It's the argument we've seen in other cases like in the Montgomery County case where, of course, the defense is that "we're not discriminating on the basis of race. This is completely race blind. We're just spreading out admissions based on geography." And what we'll really need to show the court is that, yes, you can say it's geography, but let's look at what these regional pathways -- look at what this geographic preference has done.

 

      And in Fairfax County you have Asian-American students who tend to live in the same neighborhoods, and they also tend to go to the same handful of middle schools which are advanced academic program middle schools. So those are the middle schools that offer the kind of advanced math and advanced English and Social Studies classes that you need to get into TJ. And so it was, of course, those kids clustered at middle schools. And so all you have to do is take one of those middle schools that in a normal year would send, like, 90 kids to TJ and not just apply to TJ, have 90 kids accepted to TJ, and limit them to 1.5 percent of their eighth class, and that's like, for some places, that's 8 to 12 kids. And so, that way, you're [inaudible 24:49] because you're cutting down on Asian-American students without having to have an overt racial policy.

 

      So, again, I have not had time to closely read that motion to dismiss yet. It was filed, I think, about an hour ago,  maybe less. But I imagine that is what they're saying, and I imagine that's how we'll need to counter that.

 

Caller 5:  Thanks. Keep up the good work.

 

Erin Wilcox:  Thank you.

 

Evelyn Hildebrand:  Great. Thank you. We'll now move to our next caller.

 

John Vecchione:  I'm John Vecchione, and I live just outside Falls Church. I have, my question here is how much discovery you expect you'll get. Because it strikes me that what's going on here is that if they had just started with the current admission policy they now have and they have had it for years upon years upon years, you'd have a harder row to hoe. But this retreat from standards and particularly hard academic standards and tests and all that, had the motivation behind it. And I would think that knowing the Fairfax County Board the way I do, having followed them, I don't know that they'd be completely surreptitious in their statements about why. So my question is if this may not be an as-applied case. It's going to turn on the facts. And do you expect that there's going to be smoking guns about this all over the place? Or if they're not and you've got to make an argument at a higher level of abstraction?

 

Erin Wilcox:  You know, that's a really hard question to answer, honestly, at this point. We always, I think, hope for smoking guns. What lawyer doesn't love to be digging through and find that smoking gun? But it's just really hard to say. We feel good about this case because of what we already have that we didn't have to dig for. These videos of these school board meetings and statements that, TJ principal sent home in a letter to parents, not only saying that -- what did she say -- that TJ needed to be more representative of its community. And then she did the math for the parents and said how many of each race should be at TJ.

 

John Vecchione:  That's exactly what I'm -- that's what I'm looking for. Just wondering how much of that you had on the record.  All right, well --

 

Erin Wilcox:  Yeah, I mean, we didn't even have to look for that.  So, you know, who knows --

 

John Vecchione:  And that's before you've gotten any e-mails.

 

Erin Wilcox:  Exactly.

 

John Vecchione:  I haven't been able to go on -- I just got the e-mail about this conference call. Where is it filed and what judge is assigned?

 

Erin Wilcox:  Great. So this is in the Eastern District of Virginia in the Alexandria Division. And we have Judge Claude Hilton. And I'd also recommend to anyone who is interested, at the Pacific Legal Foundation we have a part of our website devoted to this case that will also have the pleadings and other information about the case. So PacificLegal.org is also a great resource for this case.

 

John Vecchione:  Thank you very much.

 

Erin Wilcox:  Yes. Thank you.

 

Evelyn Hildebrand:  Great. Thank you. We'll now turn to our next caller.

 

Pepper Crutcher:  This is Pepper Crutcher down in Mississippi, and I have two short questions.  One, how is the argument that the school board is making here different than the arguments that school boards in Mississippi made 50 years ago trying to preserve neighborhood schools?  Secondly, what -- and with great unsuccess. And secondly, under governing current law, could they close TJ if they lost this suit?

 

Erin Wilcox:  Okay. Those are very good questions. Thank you. Well, that actually is a very good question about how is this different than what they argued 50 years ago as in neighborhood schools. I don't have a great answer for you on that. I appreciate that you've given me something to think about here.

 

      But it really is interesting how these arguments really don't change, do they? They just kind of evolve and shift to new circumstances that we've all been arguing about the same thing for 70 years now. But if they close TJ, you know, that is a scary possibility. Certainly we've seen just a few months ago in San Francisco's Lowell High School and they -- the school board there wasn't able to achieve the racial balance they wanted or enact the policies they wanted to get where they wanted to go so they just ended the magnet program and have made it a straight lottery. So I think that they could. I think it would be very stupid for Fairfax County to kind of close down TJ, which is their crown jewel, really. It has done a lot towards, I think, making northern Virginia an attractive place for a lot of tech companies and families to move knowing they have that option for their children. So I think it would be stupid, but I don't know what would stop them from doing it if they really wanted to.

 

Pepper Crutcher:  Well, you know what I'd do if -- one comment. About 60 years ago the state of Virginia passed a bill to close public schools that evaded immigration orders and that was struck down. You might want to look at that.

 

Erin Wilcox:  Mm-hmm. Yeah.

 

Pepper Crutcher:  Thank you.

 

Evelyn Hildebrand:  Great. Thank you. We'll now turn the floor over to our next caller.

 

Jim Gilmore:  Hey, this is Jim Gilmore. I am the former Governor of Virginia and the former Attorney General of Virginia. I would have thought I would alert the listeners to a case that's pending right now in United States District Court in the District of Massachusetts, Boston Division. Boston Parent Coalition for Academic Excellence v. School Committee of the City of Boston and the Boston Branch of NAACP, et al. I'm not handling the case but a friend of mine communicated with me about the case. It's very similar. This is a case where they decided that a particular public school in Boston, which is a very high-class school or a high-performance school in Boston just had too many Asians. So they jumped through a lot of hoops and they decided to admit people according to zip codes. It's very creative. And they looked to see what the racial demographics were at the various zip codes and decided to admit people by zip codes. What that's going to do is reduce the seats that Asians historically have had in that Boston school because of that approach.

 

      The case right now is being argued as to whether or not this is subject to strict scrutiny. It obviously is. But the court seems to be skeptical. They seem to want to, you know, bend in favor of the public-school board. So the issue of whether it's strict scrutiny or not should be, is presently in the breast of the court.

 

      The only other thing that I'll say is that the observation I made casually over the phone to some of the litigators was that the judge ought to really think carefully about this. If he does not apply strict scrutiny, well, then what happens in the rest of the United States? And, of course, everybody in the north thinks that everybody in the south is wearing a sheet all the time, as my friend from Mississippi just implied. So, if, in fact, they really think that southerners would like to re-segregate the schools, well, you know, if this court doesn't apply strict scrutiny to this kind of behavior, they're opening the door to exactly that kind of behavior. Now I don't think southerners act like that anymore, really. But the point is that the court would be opening the door, and I personally think the judge would be a laughingstock if he did that. So I just thought I'd make people aware of this.

 

Erin Wilcox:  Yes. Thank you. That is a very good point and that's a very interesting case that we're following. Unfortunately, yesterday evening the First Circuit Court of Appeals rejected their appeal, the parents' appeal, so it's going to be interesting to see where that one goes.

 

Evelyn Hildebrand:  Great. Thank you. We’ll turn the floor over now to our next caller.

 

Caller 9:  Hi. My question is that you have indicated that this is a very fact-based situation and at this stage of the case, that makes sense. And that's true of each of the other cases that you mentioned. As this case progresses, do you see any broader principle that maybe would have some application to other cases, or is everyone's cases going to have to be tried separately on its own facts?

 

Erin Wilcox:  Yeah, I will argue help that broader principles will be established. And the K-12 context is not the only place where we're seeing racial preferences. Another big area that I think is not being litigated as well as it could be and hopefully will be more so in the coming days, is in the contracting industry. Racial preferences like disadvantaged and minority business enterprise program. We're seeing both are very prevalent around the country. And I hope that principles can be established in cases like this would also be able to be applied in other contexts where the government is still handing out benefits and burdens based on immutable characteristics like race.

 

Caller 9:  Have you thought about where you'd like to go with that? What sort of a principle you'd like to [inaudible 34:42]?

 

Erin Wilcox:  I am so sorry. I had trouble hearing the end of that question. Could you say that again?

 

Caller 9:  Sure, sure. My question, my follow-up is: have you thought ahead to what kind of more general principle you'd like to have the court adopt in this kind of case?

 

Erin Wilcox:  Really, that's a great question. I'm having trouble articulating, but I think I'm so focused on the details of this case. But just the general principle that, first of all, if we could have the court establish that diversity is not a compelling interest in K-12 education. That's, I think, the big one that's in front of us right now. And then hopefully finding other ways to apply more broadly those sentiments and principles of individualism in other contexts where this is an issue I think would be the goal.

 

Caller 9:  Okay. Thank you.

 

Evelyn Hildebrand:  Great. Thank you. We'll now turn the floor over to our next caller and this is the final caller in our queue at the moment.

 

Caller 10:  Yes. Thanks very much.  Number one, I thought I heard recently that some schools in Virginia -- I thought it was northern Virginia and I don't know if that's included here -- had decided to terminate all of their advanced placement programs like from the sophomore level below, or something like that. I'm not sure if that's related to this case or exactly what the impact of that would be. It's sort of a different variation of the, you know, we'll just close the school solution that they're -- or prospect that was raised earlier.

 

      And I did want to highlight something that the former Virginia Attorney General came on and highlighted some stereotypes that people have about regionalism within the United States, I would further highlight that people have a poor understanding historically of the Colonial Era since slavery was originally illegal in Georgia and the primary -- one of the primary slave trading ports was Providence, Rhode Island during the Colonial Era. So at any rate, with respect to the question of them shutting down advanced placement—I guess it was advanced math—programs in northern Virginia. I don't know if that's potentially relevant to the status of the case.

 

Erin Wilcox:  Yes. I do actually know what you're talking about. A colleague pointed that out to me recently. I believe the state of Virginia is planning to do away with any kind of advanced math progression classes. I think you're right. I think it's through the tenth grade. So you'll just kind of take like a seventh-grade math and eighth-grade math, but there's no ability to differentiate between taking Algebra I or taking Algebra II and moving up if you're more advanced in those classes. Which, again, just plays to the misconception that it's not about the individual and what they're capable of. And that will be a serious disservice and, especially, to kids that want to go to TJ, one of the main requirements to be eligible to a school like TJ is that you've completed or are enrolled in Algebra I by the eighth grade. And if Virginia is just able to do away with that, that no kids are able to advance through math more quickly than others, then you are taking away that ability to differentiate that you might need more of a challenge or if you might be more gifted at math. So, again, it's this whole focus on equity over equality and focusing on the group over the talents and skills of the individual.

 

      I have asked around a bit and have been told that people don't think that that plan is likely to have any legs, but we can certainly hope not because I can imagine a great exodus of families with gifted math students from Virginia if that was to take effect, for sure.

 

Evelyn Hildebrand:  Wonderful. Thank you. We have no more callers in the queue at the moment so I will now hand the floor over to Erin for any closing remarks or further comments that she would like to make at this time.

 

Erin Wilcox:  I just wanted to say thank you to all the callers and what amazing questions that really ran the gamut of this case and of ideas to think about. So thank you so much for your interest and for our engagement. And again please do follow our case and we,  as always,  have more information available at Pacific Legal's website which is PacificLegal.org. Thank you.

 

Evelyn Hildebrand:  Wonderful. Thank you. And on behalf of The Federalist Society I want to thank our expert, Erin Wilcox, for the benefit of her valuable time and expertise today. And I want to thank our audience for calling in and proceeding with your excellent questions. We welcome listener feedback by e-mail at info@fed-soc.org. As always, keep an eye on our website and your e-mails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.