Litigation Update: Thomas Jefferson High Litigation

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Last year, Thomas Jefferson High School (TJ), ranked #1 in the nation for academic excellence, changed its admission policy discarding a merit-based entrance exam in favor of a “holistic evaluation” to determine admission.  The school stated the change was made in the name of making the student body more demographically representative.  Many concerned parents disagreed, contending that the modification was intended to change the racial makeup of the student body—specifically to exclude some Asian Americans in favor of more whites, blacks, and other racial groups.

Litigation followed.  The Coalition for TJ—comprised of approximately 5,000 concerned parents, residents of Fairfax County, and parents of eighth-graders who would be impacted by the admission policy change—sued the Fairfax County School Board and Superintendent Scott Brabrand alleging that the new policy was adopted with racially discriminatory intent in violation of the Equal Protection Clause of the Fourteenth Amendment.

Last Friday, February 25, a District Court granted summary judgment for the Coalition for TJ.  In light of the Supreme Court’s recent cert grant in the pair of Students for Fair Admission's cases—Students for Fair Admission v. Harvard and Students for Fair Admission v. UNC Chapel Hill—the Thomas Jefferson litigation is rapidly gaining national attention.

Nicki Neily, President of Parents Defending Education, joined us for a litigation update on the summary judgment decision and its implications. 


Nicki Neily, President of Parents Defending Education


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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

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



Evelyn Hildebrand:  Welcome to The Federalist Society’s virtual event. This afternoon, February 28, we discuss a Litigation Update in the Thomas Jefferson High School Litigation. My name is Evelyn Hildebrand, and I’m an Associate Director of Practice Groups at The Federalist Society. As always, please not that all expressions of opinion are those of the expert on today’s call.


Today, we are fortunate to have an excellent speaker with us this afternoon, Nicole Neily. Nicki is the president and founder of Parents Defending Education, a nonpartisan, nonprofit national organization giving the parents the resources and support they need to advocate for their children’s education. Prior to launching PDE, Nicole created Speech First, a nationwide membership organization that defends college students’ free speech rights through litigation and other means. Nicki is a longtime Federalist Society member, and we’re delighted to welcome her this afternoon.


A few housekeeping notes before we begin -- after our speaker gives opening remarks, we will turn to audience questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we will handle questions towards the end of the program this afternoon. With that, thank you for being with us today. Nicki, the floor is yours.


Nicole Neily:  Great. Thank you so much, Evelyn. All right. Well, this is kind of exciting timing for this event because on Friday afternoon, actually, a decision came down in the district court. District Court Judge Claude Hilton issued an injunction on behalf of the Coalition for TJ, which is really exciting. So I guess I’ll start out just giving an overview of the case and kind of set the stage, and then we can move into what we were initially going to talk about, which is the astonishing about of materials that the Pacific Legal Foundation, which litigated the case, obtained through discovery that we published on the Parents Defending Education website as the TJ Papers.


So to start with, Thomas Jefferson High School for Science and Technology is considered by U.S. News and World Report to be the number one public high school in the country. For many years, admission to TJ was race-blind and merit-based. Requirements to apply included you had to live in one of five counties nearby, a minimum 3.0 GPA, have completed or be enrolled in Algebra 1, and pay a $100 application fee. Once you met those criteria, students could then take a standardized test at which point, with a minimum score, students would then advance to a semi-finalist round, where GPA, test scores, teacher recommendations, and essays would be considered.


Last year, however—actually two years ago, I’m sorry—the Fairfax County Public Schools Board and superintendent adopted a new admissions policy that was aimed at balancing the racial groups at Thomas Jefferson by eliminating the admission test and instead moving to a one-round holistic evaluation that awarded bonus points for various factors, such as attendance at a middle school previously that drew from demographics considered underrepresented at TJ and guaranteeing seats for 1.5 percent of each middle school’s eighth-grade class.


So after all of the feeder middle schools had their 1.5 percent of seats allotted, only about 100 unallocated seats would remain for the rest of the student body. So all of the students then who didn't get in before would compete against each other. That being said, even in this competitive pool, things called experience factors, which I’ll get into shortly, were considered as part of the process.


So with this backdrop, in March 2020, a coalition of parents, students, alumni, and community members sued under a group called the Coalition for TJ with the assistance of the Pacific Legal Foundation to challenge these admission changes. So this has been ongoing for a long time. And through discovery, as I said, the Pacific Legal Foundation had obtained, we received a really shocking amount of documents, which are all housed on our site If you go in the search bar and you put TJ papers, and you can pull up everything. So we have all of the different exhibits that were included in the case.


So it turns out that going back to May 2020, school district staff and board members were considering admissions changes without any public discussion. There were some emails that were obtained between the district’s general counsel and other board members where they were talking about documents that were discussed during a closed meeting of the school board. They discussed initial plans to change the admissions process and noted that FCPS expects that, as a result of the changes, the student population at Thomas Jefferson High School for Science and Technology will reflect more closely the diverse population in the jurisdictions from which students are eligible to apply for admission.


It’s worth noting that the most recent -- two years ago, the class that was admitted was about 73 percent Asian American. And so, it’s not hard to discern what was considered kind of unacceptable. And if you think back to 2020, this was around the time that everything happened with George Floyd. So immediately after the George Floyd incident on June 7, 2020, the principal of Thomas Jefferson, Ann Bonitatibus sent students and families an email that outlined her ideal racial objectives for TJ admissions and wrote, “First, our school is a rich tapestry of heritages. However, we do not reflect the racial composition in FCPS. Our 32 black students and 47 Hispanic students fill three classrooms. If our demographics actually represented FCPS, we would enroll 180 black and 460 Hispanic students, filling nearly 22 classrooms. The most recent TJ admissions trend, unfortunately, does not close the equity gap.”

For a school that, as I said earlier, has a large number of Asian Americans, many of whom are first-generation American, this is really felt as -- seen as a slap in the face. At the same time all of this is going on, the state of Virginia had set out a number of criteria. They wanted to really push the schools towards incorporating greater diversity, equity, and inclusion initiatives into their schools. Thomas Jefferson is something called a governor’s school, so it’s a historically excellent school.


So with that kind of background of what the state wanted to do, board member Karen Corbett Sanders wrote to State Senator Scott Surovell and Delegate Paul Krizek on June 8, “Please be assured that I am as angry and disappointed in these numbers as you are.” New numbers had just come out showing that it was a lower number of black and Hispanic students for the 2024 incoming class that were -- had low numbers of Asian and black students. “The previous board requested that the superintendent bring to us a plan for addressing the equity and admissions issue at TJ. We had preliminary discussions, but none of us knew about the numbers. I just got off the phone with the superintendent for the second and have had conversations with Secretary Qarni–” Atif Qarni, who was at the time the Secretary of Education. “I believe that there will be intentful action forthcoming, and I will keep you both posted.”


And so, this whole idea of intentful action really spooked at least the superintendent, and that was really the thrust for why this was such a -- that it was given the -- the board members were given the impression this is something that had to happen very quickly. A week later, Karen Corbett Sanders wrote to the superintendent and copied the other school board members and said, “The admissions data for the TJ class of 2024 is unacceptable with less than 2 percent of the admitting class being black, a decrease year-over-year.” The school had a deadline of October 1, 2020, to notify the state on what their diversity plans were. And so, she was really pushing, and she asked, “Make sure that the plan includes quantifiable measures, dates by which they will be achieved, and information on how you will review the plan to make refinements as necessary.”


So this is all going on over the summer. There are discussions back and forth. And on September 15, 2020, the superintendent, Scott Braband, unveiled a new merit lottery admissions process for TJ. And that night, one of the board members, Elaine Tholen, asked the superintendent about his plans for community input and noted that we were not able to work on this the way that we should have. And so, the fact that much of this was being done behind closed doors, the discussions, the planning process, was really a matter of concern for a lot of the board members, who for the most part were very sympathetic to the plan of increasing diversity numbers at TJ through intentional means.


One board member, Megan McLaughlin, actually texted another board member and noted that transparency and authentic community engagement are paramount to ensuring public trust in government. And she expressed concerns that the school board and the public only received a proposal a few hours before a September 15 work session, which, in turn, prevented board members from examining the merits and challenges of the proposal prior to our public discussion and deliberation.


I will note just through my work at Parents Defending Education, this whole idea of public input and things being done without stakeholder and community input is really -- it’s a pervasive issue across the country. And so, while what has happened at Thomas Jefferson is certainly egregious, this is far from an isolated incident. It turns out that many elected officials, school board members really prefer to just do things how they want behind closed doors and not have that kind of input because they might get feedback that disagrees with what they ultimately want to do. And so, that’s part of the reason that we’ve seen such a significant parent uprising over the past year or so across the country.


In the wake of this rollout, the whole proposal of the merit lottery, it was an absolute debacle. The community was furious. There were protests. And they actually ended up backing down from a plan to just do the merit lottery straight up. But again, the mostly Asian and mostly immigrant parents were really furious, and they continued to submit their comments, express their displeasure, and hold protests. One board member, Karen Corbett Sanders again, asserted that all that this was trying to do was to reframe how they assess merit in admissions. And so, she was trying to kind of shift the dialogue, but I think everybody in the community really saw through what was actually happening.


A week later, on September 23, there was a video town hall that the superintendent did with the community to talk about the admissions. And he said that the race line admission test at TJ is a standardized admissions test where you can pay to play and get a good score that lets you in versus someone who cannot. This obviously inspired quite a lot of ire. A lot of the families are not wealthy families. A lot of the families, their children have worked very hard for their entire lives.


This is a similar allegation to what has been thrown around about the specialized school program in New York City, where Parents Defending Education is currently involved in some litigation. And so, the fact that -- in New York City actually for their specialized school program, 60 percent of Asian students who have been admitted are at or below the poverty line. So to assert that Thomas Jefferson, like in New York, this is just purely pay for play, that families have the ability to throw thousands of dollars like at a Kaplan Test Prep, it’s a little bit spurious, and it was insulting to the families.


Families continue to be upset about this. And board member Megan McLaughlin actually said that a lot of the families were fearful in the fact that this was a flawed, rushed plan. This was not fear of change -- like the lottery was flawed -- and said, “It is rushed when you cobble together a proposal with only three weeks to review and no prior stakeholder input.” And she also noted to another board member that, “Six of us don’t’ want the lottery. He doesn’t have seven or more members who actually want this.” And this is when we saw, through discovery, a lot of the documents show that what was actually taking place is they were trying to figure out a way to game some of the numbers. And they ended on something called a holistic admission policy. You may be familiar with this concept because it’s what we’re also seeing right now in the Harvard affirmative action case.


So Jeremy Shughart, who was the director of Thomas Jefferson’s admissions policy, asked somebody else in Fairfax who had the Office of Research and Strategic Improvement to look at a table for experience factors and figure out what current weighting is for experience and figure out where to weight things or to level the playing field for historically underrepresented groups. The woman -- the Office of Research and Strategic Improvement Director responded, “It’s hard to know what exactly will level the playing field, but my gut says you may need to double all the points and the total so that applicants can receive up to 200 points overall for these experience factors.”


She said that two portions of the application process, the student information sheet and the essay, has historically favored white and Asian candidates and went on to say that that means only the experience factors are able to help shift the landscape and bring more diversity into play and acceptance of historically underrepresented students. Since experience factors include things that more privileged students are likely to get points on as well as factors that less privileged students are likely to get points on, the potential advantage from the experience factors is likely to be at most 50 points and more likely only 25 points for most students since they’re not likely to get credit for all of the experience factors. So again, this is -- they’re trying to game the numbers. They’re trying to figure out what the right mix is to give -- to weight criteria properly.


Meanwhile, two other board members, Stella Pekarsky and Abrar Omeish, were texting back and forth kind of joking about this. They said the revised proposal will whiten our schools and kick out Asians. Abrar Omeish said, “There has been an anti-Asian feel, lol—” laughing out loud. And Abrar Omeish actually noted, “They’re discriminated against in this process, too.”


There was a scoring rubric that was developed. It was initially -- it came out in discovery. It was marked with a confidential watermark. But the initial formula had negotiated a section that actually had something called bonus points. Initial application elements as before—a GPA, a student portrait sheet, a problem-solving essay—but the experience factors, which are described literally as bonus points, have economically disadvantaged, students who have qualified for free and reduce priced meals, English language learners, special education, students with an IEP or individualized education plan, underrepresented schools. And so, that would -- this whole bonus points section would put 225 points, or 20 percent of the total maximum.


They ended up tweaking that a little bit further. And version two of this rubric actually decreased the weight of the GPA and increased the number of the bonus points. The rollout of this whole thing, unsurprisingly, was a total debacle. In December 2020, Megan McLaughlin, one of the board members, said, “I cannot recall a messier execution of board-level work. I feel that Braband’s”—the superintendent’s—“flawed operational proposals have greatly contributed to tonight’s embarrassing process.”


So in the wake of all of this, the Coalition for TJ sued the district in March 2021. And on Friday—just this past Friday—district court [Judge] Claude Hilton found that impermissible racial balancing was at the core of the plan to overhaul admissions. And he adjoined FCPS from using their revised admissions plan through the lens of strict scrutiny analysis. As he noted, “Impermissible racial intent need only be a motivating factor. It need not be the dominant or the primary one.” And as all of these documents have shown, it was certainly a motivating factor in what happened. As Hilton wrote, “Throughout the process, board members and high-level FCPS officials expressed their desire to remake TJ admissions because they were dissatisfied with the racial composition of the school.”


So with that being said, that’s kind of the overlay of where things stand. It’s really exciting. We’re hugely excited for our friends at Pacific Legal Foundation. My coworker Asra Nomani was one of the founding members of the Coalition for TJ, and so she has been on this from the beginning. They have been called names. The president of the Thomas Jefferson High School PTA, who is actually a black NAACP member, resigned from being the head of the PTA because he was called names. He had a major fight with the state level PTA—the PTA, Parent Teacher Association, also being kind of like the National School Board Association, a somewhat captured entity in the education sphere. But this is a terrific victory.


And my coworkers have spent the past several days talking to parents around the country. This is much like what we saw in Virginia after November—has really injected a lot of hope into a movement that we have seen spring up since last year. We’ve seen similar problems at Lowell High School in San Francisco. That was one of the factors that contributed to the recall of the school board members in San Francisco. And so, with that, I look forward to taking your questions because this is a really successful battle. But certainly, the war is not over yet. So with that, I look forward to taking your questions.


Evelyn Hildebrand:  Wonderful. Thank you so much. That was so, so informative, and I’m sure our audience appreciated getting a better understanding of where things stand and what’s happening because so many people have been so curious about what’s going on at TJ. So I would ask our audience, if you have questions, to please send them in via the Q&A tab at the bottom of your screen. While we’re waiting for the audience to send in any questions, I will take moderator’s privilege and ask my own question of, where do you see this going next? So procedurally -- so the court just issued a summary judgment decision on Friday, and then what’s next?


Nicole Neily:  Sure. So the first thing is that admissions for next year’s class, next year’s incoming class, are going on right now. And so, because FCPS has been enjoined from using this new fancy-pants policy that they’ve drummed up, they have to go back to what was in place before. FCPS had no backup plan. And Claude Hilton—Judge Hilton—had actually kind of implied, “Do you have one? You should have one,” and they didn't. And so, it’s back to what it was before, strictly test and the whole interview thing before. And so, that’s one factor that will happen.


The district has not put out a lot of statements about what their plans are. They have said they are considering whether they will appeal. And so, I think that’s kind of anybody’s guess right now. They could take it up to the Fourth. Who knows what will happen at the Fourth? But if you go to the Fourth, then someone will probably end up appealing up to the Supreme Court. And I think in the back of everybody’s minds right now is what’s going on with the Harvard case and Students for Fair Admissions. And so, that’s definitely something else that’s at play. But I think it’s something that -- yeah, litigation might continue.


That being said, we’ve also spoken to a lot of families over the weekend who are really, really deeply angry. We know at least one father who has filed an OCR complaint alleging racial discrimination in this process, and I know there are two others that are planning on filing their OCR complaints this week. As I have been filing OCR complaints for districts across the country over the past year, somewhat strangely, the Biden administration has not been super excited to investigate my allegations.


And so, that being said, what we have found is, when we file OCR complaints, we publicize them. And I think there is a significant weight of evidence in this case. The direct harm that has been sustained is pretty surprising. Under the new system for the class of 2025, 56 fewer Asian American students were admitted than there were the previous year despite the fact that the class size actually increased by 64 students. So the class of 2024 was 73 percent Asian. The class of 2025 is 54 percent Asian. And so, if the statistics had continued the way that they were before, there would have been about 90 more, I think, Asian students admitted. And so, that is -- I mean, let’s think through disparate impact. Those are real numbers, and those are real people. And so, it’s a bad look for the Biden administration to continue dismissing all these claims, so we’ll see.


Evelyn Hildebrand:  Great, thank you. And wow. We’re getting a lot of questions from our audience. It’s wonderful. So let’s just dive right in. Let’s see -- where to dive right in? So the Lowell case that you had mentioned—I think it’s in California—is there litigation pending there? Do you see that happening?


Nicole Neily:  I have not heard of litigation going on there right now. I know there’s litigation in Boston right now because a similar change was tried to -- they were trying to do -- Boston did a similar thing with Boston Latin. And so, I think this is going to, I think, spark a lot of people’s imaginations whether they should engage in litigation going forward.


Evelyn Hildebrand:  Certainly. Yeah. I think you’re completely right. Okay. So let’s turn back to TJ specifically. What admissions policy would the Coalition for TJ prefer? So are they asking for things to return to as it was before the changes were made, or are they asking for something different?


Nicole Neily:  Yeah. They want things to return the way they were before. They like it being merit-based. They want the students to compete on equal footing.


Evelyn Hildebrand:  Right.


Nicole Neily:  And one thing that my colleague Asra has noted is last year, there were, I think, five students that dropped out of TJ after being admitted. Previously, there have been no more than one student a year that has dropped out. And so, I know it has come up in previous discussions about Harvard, et cetera—about mismatch. And so, if students are being admitted who are not equipped for the rigors --


Evelyn Hildebrand:  Right.


Nicole Neily:  -- of the school, are we setting up for failure? I think that’s something else that is a concern not only for newly admitted families but for families that are in the school because we don’t want to do that either.


Evelyn Hildebrand:  Right. Absolutely. And that’s a question that’s frequently not asked, but braver people are willing to ask the question, which is good. That’s good for the students and good for the school and good for the community, too. Speaking of the community, Chuck Roberts asks, “What can Fairfax County residents do to support these efforts?”


Nicole Neily:  It’s been really encouraging to watch the community speak up, speak out, about how their taxpayer dollars are being used. If the district were to appeal up to the Fourth Circuit, would they engage outside counsel? Is that an appropriate use of taxpayer dollars? How much money has been spent to date on their defense of these policies? And how things have been done behind closed doors. I mean, we’ve seen a lot of recall efforts in Fairfax County, in Loudoun County, certainly, about how school board members have been conducting business.


And so, I think one thing community members can do is just to try and hold those elected officials accountable. In reading through the discovery documents, you can really tell who’s okay with keeping things happening with the process moving behind closed doors without community input and the board members who are really uncomfortable with that and feel that they are actually there to represent their constituents. And so, that’s something that I would encourage residents of Fairfax to look into.


I would also note elections have consequences. The fact that Governor Youngkin, the new Secretary of Education, Amy Guidera -- they have spoken out about what has taken place in Fairfax. That’s encouraging, too, because if this were Governor Terry McAuliffe, I have no doubt that the state would intervene in a very different stance. And that’s something that would be distressing for Virginia taxpayers. And so, I think continuing to encourage and applaud our elected officials when they do the right thing and hold them accountable when they do the wrong thing and misuse taxpayer dollars is definitely something that’s really important.


Evelyn Hildebrand:  Absolutely, yes. Two questions that I’m going to kind of combine into one, I think. Let me read through this. I know that you had mentioned -- in reading the summary judgment decision, I know that there’s pressure coming from the state—so the state of Virginia—that was cited by the board members for making decisions and the way that they did it and quickly and behind closed doors, et cetera. So we have a couple of participants asking, one, if the Virginia AG has discussed intervention and also whether the Youngkin administration has any control over TJ or if it’s entirely controlled by Fairfax County, so wondering what their involvement or lack thereof is.


Nicole Neily:  Yeah. It’s a governor’s school. And so, yeah, the state does have some oversight of that. And we have been watching the Youngkin Department of Education really start to unwind a lot of the programs that have been hugely controversial and divisive in the Department of Education in the state of Virginia. They just recently abolished the department’s EdEquity division. I became familiar with Virginia’s EdEquity division when I learned about their -- last year, they sponsored a program on how to commemorate 9/11 in a culturally responsive manner, which included only discussing Islam in the context of Muslim first responders, not to otherwise contribute to islamophobia. That’s something that, again, I’m a Virginia taxpayer that my tax dollars were used for. I find that really objectionable.


And so, programs like that will not be taking place going forward because that’s no longer a department in the Department of Education. I have not heard of the Attorney General—Miyares’s department—moving forward to intervene. But I think if the case were to proceed, if Fairfax County would appeal up to the Fourth Circuit, I’m not sure. I think it’d be great if they did. I personally -- having done a lot of litigation through Speech First over the years, I like when the Attorney General kind of distances themselves from what a local actor is doing because again, this is -- they’re using taxpayer resources, and I don’t want two sets of taxpayer resources, local and state, being used against me. Yeah. Youngkin put out a great statement. The Secretary of Education put out a great statement. And so, I think we’re all kind of holding our breath right now to wait and see what Fairfax is going to do.


Evelyn Hildebrand:  Right. That makes sense. Another question -- this is a different level of government getting involved. What about the DOJ? So you said that OCR complaints have gotten kind of ignored perhaps. Has DOJ threatened to intervene? I’m assuming we know how they would plan and intervene, but I’ll let you talk through that.


Nicole Neily:  I don’t think so. But this all happened so recently. I mean, the decision came out on Friday afternoon. And so, I wouldn't be surprised if DOJ maybe wanted to get involved. But I think, again, that’s all kind of depends on whether the case or appealed or if it just -- okay, it’s been enjoined, moving on, let’s get on with our lives and just roll things back to the way they were before.


Evelyn Hildebrand:  Right. Absolutely. And this is my own personal thought on this. That’s quite the -- and maybe I’ll just give you the opportunity to comment on the difference between the way that Loudoun County was handled, where the DOJ did get involved and make a statement. And correct me if I’m wrong, but the timing of the statement regarding investigating parents at school boards who were caught questioning the decisions of board members that the DOJ did issue a statement close in time -- at least there’s a close proximity in time with the issuance of that statement versus a DOJ not getting involved here. So I guess that’s more of a comment, not really a question about this. Back to the questions from our guests. So from Rob Haut, he asked, “Regarding discovery requests, are you aware of any DOJ interference by asserting that their requests are based in discriminatory intent?”


Nicole Neily:  No. I have not. Nothing from DOJ specifically.


Evelyn Hildebrand:  Okay. Great. Let’s see. From Michael Doherty, “What further liability risk, if any, do this place on the districts for any damages already sustained?” So perhaps damages you were referring to, like just for impact, the number of students who were not admitted.


Nicole Neily:  Yeah. I mean, the litigation that PLF did was brought on behalf of the Coalition. And those are some families that were already in the school, some families that were alumni families, some families that wanted to get into the school. I wouldn't be surprised -- I mean, I guess, at this point, it’s -- yeah. At this point, the policies are going to be -- start to be rolled back. But I think there is the option for people to individually sue and claim damages. Will that proceed? I’m not sure. Oh, frank, I didn't say this in the beginning, but I’m actually not a lawyer. I play one on TV. So please don’t ask me to speculate about all these things in a super, super informed manner. But I think that it’s something that the school should be considering because while a lot of the public interest firms don’t necessarily ask for damages, it is something that an individual plaintiff might want to do.


Evelyn Hildebrand:  Right. That makes sense. This is because you play a lawyer on TV so very well, I want to ask you about the Supreme Court.


Nicole Neily:  Okay.


Evelyn Hildebrand:  We’ve got a couple of people asking about how you expect the Court’s decision in Harvard and UNC—so cert grants recently—do you see a bleed over into K-12? I know that in a summary judgment decision, they were referring to a distinction between higher education versus lower education when looking at race is appropriate. So perhaps you could speak to that.


Nicole Neily:  Yeah. It’s been -- just over the past couple years, my work in higher ed—and I’m moving from higher ed to K-12—it’s been interesting because there is so much symbiosis. There’s bleed over back and forth. I mean, bad policies we see at the university level are being imported down to K-12. Students not knowing what’s -- not learning proper civics in K-12 obviously bleeds up to students acting really illiberal on campus. And so, I think that the synergy between the two is really interesting.


Yeah. I mean, seeing how Harvard -- in the wake of Grutter and all these other decisions, they have claimed what their interest in this and that they needed to bring greater diversity to campus. Speech First filed amicus briefs at the cert stage both for Harvard and for UNC saying that “Okay, well, you claim that that’s your reason, that you want to foster greater diversity on campus. Let’s look at polling about what’s actually taken place on college campuses. There is very little diversity of thought on colleges. If anything, things are worse now. You put in all these places, and people are now terrified to speak. And so, we have moved to a holistic admissions process, and you haven’t even ended up with this magical outcome that you wanted.”


And so, I think there is a strong reason to think that the whole idea of holistic -- I mean, who is -- at the end of the day, who is making those decisions? Who is developing these weighted criteria? There’s no transparency into how that’s happening or why that’s happening. And if it’s just based on immutable characteristics the students can’t control—skin color, gender—then suddenly, you have administrators pulling levers trying to kind of craft a student body without really – I mean, it checks boxes, but it’s not actually creating a better student experience. And so, I think there is -- yeah, I do think that there is cause for hope that what happens with Harvard and UNC is going to really be a gamechanger for the K-12 space as well.


Evelyn Hildebrand:  Right. Great. Let’s see. Speaking of the student body, what is the sentiment? Steve Schaefer, one of our attendees, asks, “What is the sentiment among the Thomas Jefferson students to the degree that it can be measured on fairness of the admissions criteria striving to create a desired student body made up of certain students and against others?” So exactly what we were referring to. I’m not sure how that could be measured, but maybe your organization is collecting that kind of data.


Nicole Neily:  Yeah. So the Coalition for TJ opposed the changes to the merit policy—to the merit-based admissions policy. There was a parallel group that was in favor of the policies they wanted. They claimed they wanted a more diverse student body. And one thing we’ve seen not only kind of in the TJ setting but in other school settings is a willingness of some advocates to use children as talking heads, as sort of like a shield. It kind of feels a little bit like the—who’s the climate change one—Greta Thunberg. And I know that the Coalition for TJ has not done that. You know, they made a very intentional decision to not try and weaponize children or use them as puppets. And so, the few students that have spoken out have been ones that have been in favor of the new policies to have a more diverse student body.


But, I mean, I also think about kind of taking a step back. The kinds of work that I engage in with race issues, with gender issues, I mean almost 99 percent of the tips that we receive on a regular basis from adults as well as students as well grandparents or teachers, people want to be anonymous because if you say, “You know what? I think people should compute fairly,” you are tarred as being a racist. You are tarred as being a bigot. And so, I think polling has shown just nationwide, people don’t like position seats being awarded on the basis of skin color, things like that, but they’re scared to actually speak out and do so.


And so, I wouldn't be surprised -- and actually, I suspect that most students actually really want -- if you have gotten into an extremely academically rigorous school, you want your peers to also be extremely serious about their schoolwork. You don’t want to be in a group project with somebody who is kind of on the margin, got in, but is not up to your standards because those are the people you compete against. Those are the people you work on projects with. Those are your peers. You compete against each other. You take pride in each other’s work and achievements. And so, if you see your classmates start to drop out, I think that’s discouraging as well.


And so, my gut is that the students --I think it’s probably still kind of seeping into students because, at the end of the day, they’re like 13- to 18-year-old kids, but I suspect that this is not as poorly received as maybe the Washington Post might imply it is.


Evelyn Hildebrand:  That makes perfect sense, particularly in light of -- I don’t have a specific one, but there have been a couple of instances in recent years where people have made statements -- or specifically high school students have made statements on social media, and then a classmate has screenshotted it or a classmate has saved that, and then they’re later admitted to college, and then the admission is revoked based on a previous statement. So that makes -- particularly for students in a very competitive high school, of course they would want to stay as anonymous as possible and not jeopardize -- unfortunate that it’s the case, but of course, they would not want to jeopardize future college admission or anything like that.


Nicole Neily:  Yeah.


Evelyn Hildebrand:  Let’s see. Okay. Another question. The cited Asian attendance being down as a percentage versus the actual count of Asian Americans who were enrolled as students, could you -- I know that you had referenced that earlier, but could you, perhaps, go through the difference in attendance prior to the change and the post the change? I think that [Inaudible 34:40].



Nicole Neily:  Yeah. There was like a chart in the decision that I’m trying to pull up right now because he had all the numbers. So obviously, I can’t find it. Okay. So the class of 2025, which is this most recently admitted class that was under the new admissions process, there were 299 offers to Asian American students, which constituted 54 percent of Asian American students that received offers. In 2024, there were 355 offers extended to Asian American students, which was 73 percent of offers. The class of 2023, the year before that, 360 offers to Asian American students, again, 73 percent of the Asian American proportion of offers extended. And so, it dropped off precipitously while the class size increased overall.


Evelyn Hildebrand:  Great. And I think what I will do for the benefit of attendees is I’m going to link the event page, which includes a link to the summary judgment decision which, if I’m right, has the graphs that you had just discussed.


Nicole Neily:  Yeah.


Evelyn Hildebrand:  And I don't know exactly where, but I’ll put that in a chat so that -- for people who are interested in going through and reading it, they’ll be able to click there and then find the decision itself. Okay. Wonderful. Thank you. And now, another question from James Horton, “In Texas, we have a law requiring school board meetings and decisions accepting a few things to be posted and then open to the public. Discussing and deciding ‘off the record’ like this is illegal. Does Virginia have a similar law?”


Nicole Neily:  Yes. That’s so funny you say that. All states have an open records law. And we have found, somewhat sadly, that school boards across the country routinely flout that. So they can go into executive session, which is one thing, right? You’re discussing a lawsuit. It’s not going to be on the public record. But a lot of these -- I mean, a lot of the correspondence that were received through discovery were actually -- they were text messages. Those are still considered part of -- you’re conducting district business. And actually, in Texas, there was a school district where there were two school board members that were indicted by a grand jury because they were discussing district business on text message in a deliberate attempt to keep it out of the public record.


One thing we have found just over the past year—Parents Defending Education is a big fan of filing FOIAs and public records requests—many school officials do not think of themselves as state actors. And so, this is something that I encourage many, many, many of you to go out and do. File the request. They have to turn it over to you. Be smart in what you request—terms, people, time horizon—but you’ll be surprised the kind of information that actually comes out because, yeah, a lot of people are very, very free in what they email back and forth, not realizing that it can end up on the front page of the Washington Post sometime.


So this is very much an instance where they were discussing in explicit detail what their intent was—their displeasure with the policies. And I think that was -- so much of it was cited by Judge Hilton in his decision that it really did play a factor to show that race was a motivating factor in this decision and that it made a lot of people very uncomfortable.


Evelyn Hildebrand:  Right. There’s actually—and I think that this is part of the impetus for wanting to put a webinar together to discuss more of what was going on with TJ and the litigation—is there was a Wall Street Journal article recently which highlighted a lot of the evidence, which I think is the same kind of thing that -- probably exactly the same that your organization -- you had referenced a page on your organization’s website that includes and lists all of the evidence that came out as far as racially motivated nature of the decisions that were being made by the board. So I think it was Bill McGurn who wrote an article a couple of weeks ago, maybe a month ago—same kind of thing. So --


Nicole Neily:  Yeah.


Evelyn Hildebrand:  -- we’re really [Inaudible 38:20].


Nicole Neily:  Yeah. Last year, I filed an OCR complaint against Wellesley Public Schools in Massachusetts because they held racially segregated affinity groups. In the wake of my filing OCR complaint, Judicial Watch filed a FOIA with the district to figure out what had gone into that decision. And they discovered a lot of really damning emails back and forth where the district told a white teacher she couldn't attend. They had access to an email that a teacher sent to her class and said, “White students not allowed.” And we actually -- we ended up suing Wellesley and just settled with them about two weeks ago. And the Judicial Watch FOIAs were an invaluable part of our lawsuit. And so, it is really -- I mean, you don’t have to go to discovery necessarily to find the kill shot. And so --


Evelyn Hildebrand:  Right.


Nicole Neily:  -- I definitely encourage everybody to think of that as a tool in your arsenal.


Evelyn Hildebrand:  That’s great. That’s really good for our audience to know. Let’s see. If anyone else has a question, please send it in. We’ve gone through a lot of questions, so thank you for sending them in, and thank you for answering them. Last one that we have in the queue for the moment -- from Juscelino Colares, “Does the private-public divide in the Harvard and UNC cases indicate that the UNC case is more relevant to your TJ litigation?” I think if I’m remembering this correctly, UNC is a public versus Harvard being a private institution. And that would be the difference that would make this relevant -- but handing that over to you.


Nicole Neily:  Maybe. Yeah. I mean, yeah. The Harvard case is being litigated by -- and UNC, I guess it’s been combined. It’s being litigated by Consovoy McCarthy, who Parents Defending Education uses as our litigation counsel. But I’m not super up on the nuts and bolts of what that is. I think the fact that the justices combined the two cases rather than choosing one and -- only taking one or holding them separately, I think, shows that there are overwhelming concerns—overriding concerns.


Certainly, Harvard and UNC are both recipients of federal funds, and so they’re both subject to Title VI. And this is Thomas Jefferson; it’s a public school. It is also, obviously, a recipient of federal funds. And so, I wouldn't say that UNC is more strictly relevant than Harvard is. I think that the overt racial intent, I think, is frankly in the Harvard case from what I have seen and heard seems to be a little bit more explicit than it was in UNC, quite frankly and, again, targeting Asians who are deemed to have been historically overrepresented at Harvard. And so, I wouldn't -- yeah, I think it’s hard to say one way or the other.


Evelyn Hildebrand:  Gotcha. Great. To our audience, if you have any other questions, please feel free to send them in. Thank you for participating. This has been a very lively webinar, so thank you. Do you have any questions—areas that you wanted to cover that we haven’t had the chance to? Oh, and, you know, I’m speaking too soon. We’re getting another question right as I speak from Allen Smith. Okay. So this goes to something you had mentioned about mismatch -- so admitting students who may not be prepared for the academic rigors of an institution, that they would be perhaps better prepared if it was a merit-based admission program versus a holistic program of admission. The question is, what about the buildup of frustration on the students accepted who wouldn't have been by academic performance?


Nicole Neily:  Yeah. No, I actually just pulled up what my colleague Asra wrote. And so, she said, “In school district enrollment figures made public for the first time, eight freshmen admitted through the new race-based admission process dropped out of TJ over just five months, between September 2021 and January 2022. In the entire school year before, just one student dropped out.” And so, that’s a large number of students to drop out of a pretty small school. And again, those are seats that could have gone to students who --


Evelyn Hildebrand:  Right.


Nicole Neily:  -- wanted to be there and would actually stay in.


Evelyn Hildebrand:  Right.


Evelyn Hildebrand:  And so, yeah, you want peers who are there for the long haul and can compete.


And, I mean, I remember being a student class. And the teacher having to spend a disproportionate amount of time and energy on somebody who doesn’t get class material, I think, yeah, it is a source of frustration for students. That being said, certainly, as we discussed before, students, I think, are reticent to discuss those issues, particularly when there is and there has so obviously been a racial overlay on everything that has happened in the school and the applications and the incoming students. And so, I think even if students are frustrated, I think they’re probably reticent to discuss it. But I think it is in people’s minds, for sure.


Evelyn Hildebrand:  Great. All right. I think that’s the last call for questions. So, I’ll hand the floor back over to you for any closing comments or any subject matter that you did not get the chance to address already. And yeah, a closing call for questions from our audience.


Nicole Neily:  No. I mean, I appreciate everybody being interested in this because this war on merit that we have seen at Thomas Jefferson is certainly taking place from coast to coast. It was a motivating factor in getting a lot of people out to vote in San Francisco in the recall elections. It’s taking place in Boston with Boston Latin. And so, a lot of the country’s elite schools in the name of equity are -- they’re trying to do away with tests like this. I mean, we have seen universities saying they’re not going to use the SAT—which is, as many people on this call know, a really good determining factor in success in college—because it is considered racist.


And so, a lot of this -- in the push to drive greater equity, we end up seeing the government with its thumb on the scale, holding some people down and trying to lift others up. In the state of Oregon, they recently got rid of their graduation requirements in the name of equity. The specifically cited BIPOCs students, which then implies, okay, you think that those minority students are incapable of meeting graduation requirements. A high school diploma in the state of Oregon going forward, you don’t have to be proficient in reading, writing, or mathematics. That makes that diploma for everybody else absolutely worthless.


And a lot of the parents who come to us, this is their first rodeo. They are not political. They are not all Tea Party activists. Many of them, many of them, are first-generation Americans. They have chosen to move to this country. They tell us, “Don’t teach my son that getting the right answer in math class or showing his work is racist. Tell them to teach my kid calculus so he can apply to MIT and make a better life for himself.” People are indignant about this war on excellence.


And as activists continue to push and push and push and try and erase that excellence, it does a disservice, not only to these students, but also to our country. I mean, how can we compete in a global marketplace when we get rid of these programs. We have students that are bored, and when those students are bored, they act out. And trying to dumb everything down to the lowest common denominator does nobody a service. It does not encourage students to thrive. It does not encourage students to strive. And I think it really -- it significantly weakens us. And so, this is one battle in a larger war, but I do -- I appreciate you all for caring about this and continue to be engaged in it.


Evelyn Hildebrand:  That’s fantastic. Thank you. Yes, many, many thanks to you, to your organization for the great work that you’re doing, to our audience for tuning in and participating. We welcome listener feedback by email at [email protected]. So if you have feedback, please do send it there. Check the chat for the link to the summary judgment decision if you’re interested in reading it and also for a link to the Defending Education website where you can see all of the documents that were collected with regard to this litigation specifically. And without any further comments, we are adjourned. Thank you very, very much. That was excellent. Thank you.


Nicole Neily:  Thank you.




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