It’s a Sad Day: TJ Discriminatory Admissions Policy Is Allowed to Stand

The U.S. Supreme Court, in an order entered yesterday, declined to review the decision of a court of appeals in Coalition for TJ v. Fairfax County School Board that upheld a discriminatory admissions policy for the once-elite Thomas Jefferson High School for Science and Technology (“TJ”).  Two justices (Alito and Thomas) voted to take the case, but four votes were needed.  Thus, as Justice Alito said, an “aberrant” and “indefensible” ruling was allowed to stand.

Background

TJ used to be ranked as the #1 academic high school in the country.  It selected 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 American students — in the neighborhood of 70% in recent years.

In 2020, the newly-elected School Board decided to change things in the name of diversity.  The standardized tests were scrapped.  Instead, each middle school was 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 would henceforth be 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 filling the allocated seats, the roughly 100 remaining seats were opened to all remaining applicants, regardless of their middle school.  These new standards were challenged by a coalition of Fairfax County parents.

Although race was not specifically mentioned in the new admissions standards, a wealth of evidence in the trial court established that changing the racial/ethnic makeup of the TJ student body was the core objective of the School Board.  And the factors to be considered left little doubt.  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 concentrated 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 first year of the new program, the percentage of Asian Americans in the TJ freshman class dropped from about 73% 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%.

The federal district court ruled in February 2022 that the purpose and effect of the new policy was to discriminate against one minority group in favor of others.  It therefore struck the policy down as a violation of the “equal protection of the laws” guarantee to the Constitution’s Fourteenth Amendment.

The School Board appealed, and in May 2023 the federal Court of Appeals for the Fourth Circuit, in a split 2-1 decision, reversed the district court and reinstated the new admissions policy.

A few weeks later, the U.S. Supreme Court handed down a contrary decision in a case involving Harvard University and the University of North Carolina.  As in the TJ case, those universities had adopted admissions policies whose purpose and effect was to reduce the percentage of Asian American students in the student body.  The Supreme Court held that racially-based “affirmative action” policies like these violate the Fourteenth Amendment.

The TJ plaintiffs then appealed to the Supreme Court, hoping that the ruling in the Harvard/UNC case would be applied.  But review by that court is discretionary, requiring four of the nine justices to vote to take the case.  Only two did.

Discussion

Yesterday’s order from the Supreme Court doesn’t imply that it agrees with the ruling of the Court of Appeals.  To the contrary, as just indicated, the TJ decision is inconsistent with the Supreme Court’s Harvard/UNC ruling.  But the Court can only take up a limited number of cases each year.  It doesn’t ordinarily explain why it decides against taking particular cases, and it didn’t do so here, but a likely reason is that the Court didn’t want to devote more of its limited time to an issue it had already decided less than a year ago.

The Fairfax County School Board could and should comply with the law without a judicial mandate, but this Board has made clear, in this case and in others, that it will defy laws that conflict with its woke agenda.  It has given no indication that it has any intent to change its TJ policy to conform to the Harvard/UNC decision, so the citizens of Fairfax County will likely be stuck with it for some time to come.

The TJ litigation didn’t need to end this way.  When the Court of Appeals issued its ruling in May 2023, it knew the Supreme Court would decide the Harvard/UNC case within a matter of weeks.  If the Court of Appeals had waited, it would have been compelled to conform its decision to the law as laid down by the higher court.  But, for questionable reasons, the court chose to rule before the Supreme Court could do so.

The Fourth Circuit’s reasoning was bizarre.  It found the the new TJ admissions policy wasn’t discriminatory because, under it, 48% of the applicants in 2021 identified as Asian Americans, whereas 54% of the admissions went to that group.  Thus, the court concluded, elementary arithmetic demonstrated that the admissions process benefited Asian American applicants.  Say again?  The group’s representation in the freshman class plummeted from 73% to 54% under the new rules.  This is a clear, dramatic adverse impact, and yet the court concluded there was no discrimination.  There is a huge logical flaw here.  The fact that the admission ratio for Asian Americans exceeded the application ratio by a few percentage points (54% vs. 48%) might simply mean that the qualifications of this group– even under the watered-down standards — 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 of discriminatory impact.

Justice Alito, in voting to grant review, issued a compelling opinion as to why the Fourth Circuit’s decision should have been reviewed and reversed.  His analysis, in which Justice Thomas joined, is well worth reading, for it demonstrates why the School Board’s policy is “aberrant” and “indefensible.”  Justice Alito’s opinion is here.  https://www.supremecourt.gov/opinions/23pdf/23-170_7l48.pdf.

Justice Alito provides the following hypothetical to demonstrate why the Fourth Circuit’s “‘elementary arithmetic’ was elementary error”:

“Suppose that white parents in a school district where 85 percent of the students are white and 15 percent are black complain because 10 of the 12 players (83 percent) on the public high school basketball team are black.  Suppose that the principal emails the coach and says: ‘You have too many black players.  You need to replace some of them with white players.’  And suppose the coach emails back:  ‘Ok.  That will hurt the team, but if you insist, I’ll do it.’  The coach then takes five of his black players aside and kicks them off the team for some contrived — but facially neutral — reason.  For instance, as cover, he might institute a policy that reserves a set number of spots on the roster for each of the middle schools who feed the high school.  According to the reasoning of the Fourth Circuit majority, this action would not violate equal protection because the percentage of black players left on the team (approximately 42 percent) would exceed the percentage of black students in the school.”

Unfortunately, this is the crazy reasoning that led the Court of Appeals to uphold the discriminatory TJ admissions policy.

Conclusion

It’s a sad day for education in Fairfax County.   In a large county with about 30 quality public high schools, the School Board cannot tolerate even one in which the highest academic standards are the paramount consideration.  Demonstration of readiness for rigorous education must give way to considerations of racial/ethnic balancing.

Will this policy benefit students?  Certainly not the Asian American applicants who are excluded.  But will it even benefit the minorities who are admitted because of the elimination of entrance examinations and other academic criteria?  Might the result be that students who would do well in another high school will struggle to succeed in a class filled with the brightest students in the county?  Or will everyone suffer from degradation of the curriculum to accommodate less-prepared students?  We probably won’t get honest answers to these questions because the School Board is unlikely to demand an objective analysis of the results of its policy.

Kudos should go to the Coalition for TJ and to other citizens who fought to maintain race-blind, objective, quality admissions standards for TJ.  It’s unfortunate that the School Board has different priorities.