TJ’s Discriminatory Admissions Policy Is in Jeopardy

On Monday of this week, the U.S. Supreme Court decided to review the constitutionality of Montgomery County Maryland’s admission criteria for its elite magnet middle schools.  The criteria were designed to achieve racial balancing at the expense of Asian American applicants.

The Montgomery County plan is similar to Fairfax County’s criteria for admission to its premier Thomas Jefferson High School for Science and Technology (“TJ”).  The TJ plan was challenged in court, but a federal court of appeals upheld it in 2023.  The Supreme Court declined at that time to consider the matter.  Now, however, the Supreme Court has decided to review the constitutionality of the Montgomery County policy, and the outcome should determine the legality of the TJ policy as well.

History of the TJ Litigation

TJ is regarded as one of the top high schools in the nation.  Historically, admission was determined by objective testing of students’ academic aptitude and readiness for rigorous coursework.  But the results of that merit-based approach were not acceptable to the School Board because, under it, more than 70% of TJ’s students had Asian American parents.  The Board decided that considerations of equity and diversity mandated a more racially-balanced student body.  It therefore adopted a new policy that scrapped standardized testing and replaced it with “holistic” criteria that gave proportional representation to all middle schools in the county, as well as consideration of the students’ “experience factors” such as special-ed status and eligibility for subsidized meals.

Although race was not specifically mentioned, changing the racial/ethnic makeup of TJ’s student body was the School Board’s core objective.  Statements by the school system’s leaders, as well as the new admission criteria themselves, left little doubt.  The Board recognized that the homes of the various racial/ethnic groups are not evenly distributed throughout the county, and that Asian American students are somewhat concentrated in a few middle schools; thus, by allocating TJ’s seats more widely in the county, the percentage of Asian Americans in TJ would be significantly reduced.  The other “holistic” criteria had the same purpose.

The effect of the change was dramatic.  In the first year, offers of admission to Asian Americans plummeted from 73% to 54%, while offers to other racial and ethnic groups increased (Hispanics from 3% to 11%, African Americans from statistically zero to 8%, and Whites from 17% to 22%).

A parent group — Coalition for TJ — challenged the new policy in federal district court.  The court ruled in the parents’ favor on the ground that the policy had a racially discriminatory intent and effect, thereby violating the U.S. Constitution’s guarantee of equal protection of the law.  But the School Board then appealed to the U.S. Court of Appeals for the Fourth Circuit (which includes Virginia, Maryland and three other states).  That court held that the School Board’s policy was lawful.  Coalition for TJ v. Fairfax Co. Sch. Bd., 68 F.4th 863 (2023).

The Fourth Circuit’s reasoning was bizarre.  It found that the new TJ admissions policy wasn’t discriminatory because, under it, 54% of the 2021 admissions were given to Asian Americans whereas only 48% of the applicants were from that group.  Thus, the court concluded, “elementary arithmetic” demonstrated that the admissions process benefited Asian Americans!  The group’s representation in the freshman class dropped from 73% to 54% under the new rules — a clear, dramatic adverse impact — and yet the court concluded there was no discrimination.

There was a huge logical flaw in the court’s reasoning.  The fact that the admission ratio for Asian Americans exceeded the application ratio by a few percentage points (54% vs. 48%) simply meant that the qualifications of this group – even under the watered-down standards — exceeded the qualifications of other racial/ethnic groups who applied.  The before-after effect on Asian American admissions (73% to 54%) told the true story of discriminatory impact.

A few weeks after the Fourth Circuit’s decision, the U.S. Supreme Court decided Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023).  That case considered a college admissions policy 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 equal protection clause of the Constitution’s Fourteenth Amendment.

The TJ plaintiffs then appealed to the Supreme Court, hoping that the Harvard ruling would be applied in Fairfax County.  But only two of the nine justices voted to take the case.  This didn’t mean the Supreme Court agreed with the Fourth Circuit’s decision.  Review by the Supreme Court is discretionary, and it can only consider a small number of cases each year.  It seems likely that it didn’t take the TJ case because it didn’t want to devote more of its limited time to an issue it had already considered quite recently.

Justice Alito, one of the two justices who voted to grant review, issued a compelling opinion as to why the Fourth Circuit’s decision should have been reviewed and overturned.  He provided the following hypothetical to demonstrate why the court’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.”

Nevertheless, because the Supreme Court didn’t accept the TJ case for review, the Fairfax County School Board’s discriminatory policy for TJ admissions remains in effect today.

What Has Now Changed

After the Fourth Circuit’s 2023 decision in the TJ case, other federal courts decided similar cases arising in the Boston, New York City and Philadelphia school systems.  The results of these cases were conflicting.  Thus, admission policies that would be lawful in Fairfax County and Boston might be deemed unconstitutional in New York City, Philadelphia and elsewhere.

In the midst of these court cases, the Fourth Circuit ruled against parents in Montgomery County.  The judgment in favor of the school district was based on the court’s prior ruling in the TJ case.

The Montgomery County parents asked the Supreme Court to review the decision, as the TJ parents had done three years ago.  But this time the result was different … the Court agreed on Monday to take the case.  One of the Supreme Court’s criteria for accepting cases for review is when lower courts have rendered conflicting rulings about what is and isn’t lawful, which is what had unfolded regarding admission policies for public schools.

The issue to be considered by the Supreme Court in the Montgomery County case is: “Whether a plaintiff challenging a facially neutral admissions policy as racially discriminatory must establish that the targeted racial group suffered an aggregate disparate impact relative to its share of the applicant pool.”  In other words, can a school district prevail so long as the targeted group’s percentage of admissions equals or exceeds its share of the applicant pool, even if the intended and actual effect of a new policy is to reduce that group’s representation in favor of others?  This is the issue framed by Justice Alito when he urged the Court in 2023 to review the TJ decision.

It is very likely that the Supreme Court will answer the question in the negative.  Its precedents, including its 2023 decision in the Harvard case, as well as the illogical reasoning of the Fourth Circuit in the TJ case, and the judicial philosophy of the Court’s majority, all point towards a decision in favor of the parents.

What to Expect from the Fairfax County School Board

Don’t expect the Fairfax County School Board to acknowledge the handwriting on the wall.  It won’t amend its admittance criteria for TJ anytime soon.  Given its track record in defending to the bitter end its “woke” policies on other issues, the School Board won’t do anything until, at the earliest, the Supreme Court issues its decision in the Montgomery County case next spring or early summer.  And even then, the Board may argue that its policies are somehow distinguishable from Montgomery County’s, such that the Supreme Court’s decision in the Maryland case isn’t applicable in Fairfax County.

My prediction is that the School Board won’t shrink from additional time-consuming litigation in which huge amounts of taxpayer dollars are spent in defense of its unconstitutional conduct.

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