Appeals Court Overturns District Court Ruling in TJ Case

In a 2-1 split decision today, the U.S. Court of Appeals for the Fourth Circuit reversed the lower court’s ruling in Coalition for TJ v. Fairfax County School Board.  The district court had ruled in February 2022 that the Fairfax County School Board’s revision of admissions criteria for the elite Thomas Jefferson High School for Science and Technology (“TJ”) were adopted with the intent to, and effect of, reducing the proportion of Asian Americans in the student body, thereby violating the “equal protection of the laws” guarantee of the U.S. Constitution’s 14th Amendment.

In opinions totaling 47 pages, the two-judge majority held that the district court erred when it found that the revised admissions criteria had a disparate impact on Asian Americans.  The majority also found that the new standards were race-neutral on their face and that there was insufficient evidence of a discriminatory intent.  Accordingly, the majority applied a lenient standard of appellate review and reversed the decision of the district court.  In a 28-page dissent, the third judge argued that the district court’s opinion should have been affirmed.

Two cases raising similar issues are currently pending in the U.S. Supreme Court.  They involve college admission policies at Harvard University and the University of North Carolina.  In both cases, challengers claim the universities improperly changed the factors considered in admissions with the intent of reducing the percentage of Asian American students.  The Supreme Court heard arguments in October 2022 and will render its decisions by the end of June.   The rulings may have a major impact on whether the TJ plaintiffs can get today’s adverse decision overturned.  TJ’s lawyers announced after today’s decision that they do plan to appeal to the Supreme Court.

Background

TJ has consistently been ranked as one of the top academic high schools in the country.  Prior to 2020, it selected its students pursuant to rigorous criteria, based on a GPA of 3.0 or higher, standardized tests, written submissions, and teacher recommendations.  The “problem” was that this resulted in a “disproportionate” percentage of Asian Americans in the student body — in the neighborhood of 70% in recent years.

In 2020, the newly-elected School Board decided to change the entry standards in the name of diversity.  The standardized tests were scrapped.  Under the new criteria, each middle school is allocated a number of seats at TJ equal to 1.5% of that school’s eighth grade student population.  The applicants from each middle school are evaluated on the basis of grade point average, a “portrait sheet” describing the student’s skills, and four “experience factors” (i.e., the student’s special-ed status, eligibility for subsidized meals, status as an English-language learner, and attendance at a previously underrepresented public middle school.)  After the allocated seats are filled, the roughly 100 remaining seats in the incoming class are open to all remaining applicants, regardless of their middle school, and their applications are evaluated by the same criteria.

Notably, race is not specifically mentioned in the new admissions standards, and students’ names (which might suggest the race of the applicants) aren’t included in applications either.  But a wealth of evidence in the trial court established that changing the racial/ethnic makeup of the TJ student body was at the heart of the new admissions policy.  And the factors to be considered, while again not mentioning race/ethnicity, were clearly designed to reduce the percentage of Asian Americans and to increase the percentage of other groups.  For example, because the homes of some racial/ethnic groups are not evenly distributed throughout the county, and because Asian American students have been somewhat clustered in a few middle schools, the School Board recognized that the reallocation of TJ’s seats on the basis of geography (by middle schools) would inevitably and significantly reduce the percentage of Asian Americans that would be admitted to TJ, while increasing the percentage of other minorities in the student body.

In the first year of the new program, the percentage of Asian Americans in the TJ freshman class dropped from about 73% in the prior year to 54%.  All other racial/ethnic groups benefited.  Admissions of Hispanic students increased from 3% to 11%; offers to Black applicants increased from statistically zero to 7%, and offers to White students increased from 17% to 22%.

Analysis

Whether the 4th Circuit’s decision is “right” or “wrong” from a legal standpoint is beyond the scope of this article.  Numerous court decisions since the 1970s have discussed the constitutionality of affirmative action programs in school admissions, and the legal standards have evolved over time.  Moreover, as noted above, the Supreme Court is currently considering two cases that may again reformulate the applicable standards.  So, I will venture only a few observations at this point.

First, it seems odd that the 4th Circuit issued its decision at this time.  It was not under a prescribed timetable.  With the Supreme Court’s opinion in the Harvard and UNC cases due in less than two months, it would have been logical for the court of appeals to wait for those rulings, and then apply the legal rules established by them to the TJ case.  If the Supreme Court strikes down the universities’ admissions policies, the TJ decision is likely to be thrown into doubt.  What typically happens in situations like this is that the Supreme Court will “remand” the case to the court of appeals “for further review in light of today’s rulings.”  If that were to occur here, the validity of TJ’s revised admissions standards would remain in limbo for at least several months, and maybe more.

Second, the 4th Circuit’s rationale for finding that the new TJ admissions criteria didn’t adversely affect Asian American applicants is baffling.  The majority opinion points out that 48% of TJ’s applicants in 2021 identified as Asian American, while 54% of the 2021 admissions went to that group.  Thus, the court concludes, the admissions process benefited Asian American students!  End of story.  I’ve read this portion of the majority opinion several times, and still can’t understand it.   The fact is that the group’s representation in the freshman class plummeted from 73% to 54% under the new rules.  The mere fact that the admission ratio for Asian Americans exceeded the application ratio by a few percentage points (54 vs. 48 percent) might simply mean that the qualifications of this group — even under the watered-down academic requirements — significantly exceeded the qualifications of other racial/ethnic groups who applied.   The before-after effect on Asian American admissions (73%, reduced to 54%) tells the true story about the effect of the new policy.

Third, the majority relied heavily on the fact that the final admissions rules adopted by the School Board didn’t mention racial goals or racial admissions criteria.  Given the heavy body of evidence indicating that racial rebalancing was at the heart of what the Board was trying to do, it strikes me that the court is saying that a government body can avoid scrutiny of its true intent by careful, race-neutral wording of its policies.  The dissenting judge’s rationale makes more sense to me; she explained her decision by stating: “The majority … refuses to look beyond the Policy’s neutral varnish.  Because the evidence shows an undisputed racial motivation and an undeniable racial result, I respectfully dissent.”

Finally, whatever the final result may be, it’s sad that in a county with 28 highly rated high schools, the School Board couldn’t allow outstanding academic qualifications to be the primary criterion for admission at even one of them.  TJ had previously admitted the most academically gifted students from around the county, without regard to race, ethnicity, or family background.  Was this “inequitable”?  Apparently so, in the eyes of the School Board, which decided that “diversity” was more important than academic excellence.

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