Virginia High School Admissions Changes That Severely Reduced Asian Student Enrollment Upheld By Appeals Court
The hopes and dreams of Asian students, often from poor immigrant families, are dashed on the rocks of “equity” and racial balancing.
In what can only be described as a body-blow to the hopes and dreams of students of Asian descent, the 4th Circuit Court of Appeals, in a 2-1 decision, reversed a trial court ruling that struck down a scheme by Thomas Jefferson High School for Science and Technology (“TJ”) to reduce its Asian student percentages.
We have covered this story since the start:
- Lawsuit Alleging Anti-Asian Discrimination In Admissions Change At Top-Ranked Virginia High School
- Asian Enrollment Slashed at Top Virginia High School After Admissions Changes Subject Of Lawsuit
- “The American dream won!” Virginia Anti-Asian School Admission Scheme Halted By Federal Judge
That last post summarized the context of the case, and how it was part of a national trend from leftist education activists:
We have covered numerous schemes by admissions offices to lower Asian enrollment through various subterfuges centered on deemphasizing or eliminating the weight given to standardized testing. The schemes never come right out and admit what they are doing, they usually couch it in vague soft factors and gibberish about “equity”.
We’ve seen in in higher education with the Harvard case accepted for review by the Supreme Court, and in K-12 with the Boston “Zip Code Quota Plan” that so far has survived court challenge, and is on appeal.
We also covered the Lawsuit Alleging Anti-Asian Discrimination In Admissions Change At Top-Ranked Virginia High School, Thomas Jefferson High School for Science and Technology (“TJ”) .
Here was the heart of the case, as described by Pacific Legal, which represented Coalition for TJ, the plaintiff umbrella group:
Until last year, admission to TJ was race-blind and merit-based; requirements included a standardized test, grade-point average, completion of certain math classes, and teacher recommendations. Last year, the Fairfax County Public Schools’ board and superintendent adopted an admissions policy aimed at balancing the racial groups at TJ by eliminating the admissions test, guaranteeing seats for 1.5 percent of each middle school’s eighth grade class, and awarding bonus points for various factors such as attendance at a middle school previously underrepresented at TJ. The intended result: dramatically reducing the number of Asian-American students admitted to TJ.
From the District Court Decision:
Here, no dispute of material fact exists regarding any of the Arlington Heights factors, nor as to the ultimate question that the Board acted with discriminatory intent. Under Arlington Heights, disparate impact is the starting point for determining whether the Board acted with discriminatory intent. The Board’s overhaul of TJ admissions has had, and will have, a substantial disparate impact on Asian American applicants to TJ.
A comparison of publicly available data for the Class of 2025 with earlier classes tells much of the story. As depicted in the table below, the number and proportion of Asian-American students offered admission to TJ fell following the challenged changes….
It is clear that Asian-American students are disproportionately harmed by the Board’s decision to overhaul TJ admissions. Currently and in the future, Asian-American applicants are disproportionately deprived of a level playing field in competing for both allocated and unallocated seats. Placing the Board’s actions in historical context leaves little doubt that its decision to overhaul the TJ admissions process was racially motivated….
The impetus to overhaul TJ admissions came from several sources, all of which confirm that the Board and high-level FCPS actors set out to increase and decrease the representation of certain racial groups at TJ to align with districtwide enrollment data. Board members promised action on TJ admissions that would specifically address the school’s racial makeup. After the summer state task force, FCPS officials scrambled to meet a perceived deadline from Richmond to overhaul admissions with race in mind….
In the 4th Circuit Opinion the court reversed. Here is the key section (pp. 37-39) of the Opinion summarizing the holding:
It is settled, as the Supreme Court said, that “the Fourteenth Amendment guarantees equal laws, not equal results.” See Feeney, 442 U.S. at 273. Doubtlessly, there are some unequal results at play here. Under the challenged admissions policy, Asian American applicants to TJ enjoy far greater success in securing offers of admission than do prospective students from any other racial or ethnic group. Thus, the Coalition’s remarkable efforts to twist TJ’s admissions statistics and to prove a disproportionate, adverse impact on Asian Americans students fall flat. By the same token, the Coalition’s contention that the Board’s aim to expand access to TJ and to enhance the overall diversity of TJ’s student population constitutes per se intentional racial discrimination against Asian American students simply runs counter to common sense.
Because the Coalition cannot prove invidious racial discrimination by the Board, the challenged admissions policy is assessed by us under the rational basis standard of review. See Lewis v. Ascension Par. Sch. Bd., 806 F.3d 344, 361-62 (5th Cir. 2015) (“[W]here there is no proof of either discriminatory purpose or discriminatory effect, the government action is subject to rational basis review.”). The policy therefore comes to us “bearing a strong presumption of validity,” and we have no difficulty in concluding that it is rationally related to a legitimate state interest — indeed, the parties do not dispute that fact. See Giarratano v. Johnson, 521 F.3d 298, 303 (4th Cir. 2008). Moreover, we have recognized that the “federal courts should not lightly interfere with the day-to-day operation of schools,” given that “school officials are far more intimately involved with running schools” than are judges. See Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 440 (4th Cir. 2013). In that regard, the Supreme Court has instructed the judiciary not to “intervene in the resolution of conflicts which arise in the daily operation of school systems,” unless those conflicts “directly and sharply implicate basic constitutional values” — which, as we have explained, is by no means the situation presented here. See Epperson v. Arkansas, 393 U.S. 97, 104 (1968).
On this record, the challenged admissions policy’s central aim is to equalize opportunity for those students hoping to attend one of the nation’s best public schools, and to foster diversity of all stripes among TJ’s student body. The Supreme Court has recognized that — in the context of higher education — promoting a broad spectrum of student diversity qualifies as a compelling state interest, in view of the “substantial,” “important,” and “laudable . . . educational benefits that flow from a diverse student body.” See Grutter v. Bollinger, 539 U.S. 306, 330, 343 (2003); see also Parents Involved, 551 U.S. at 783 (Kennedy, J., concurring in part and concurring in the judgment) (“Diversity, depending on its meaning and definition, is a compelling educational goal a school district may pursue.”). Expanding the array of student backgrounds in the classroom serves, at minimum, as a legitimate interest in the context of public primary and secondary schools. And that is the primary and essential effect of the challenged admissions policy. Accordingly, the policy is rationally based, and the challenge interposed against it by the Coalition must be rejected.
In the Dissent (starting p. 48):
Our Constitution guarantees every person equal treatment under the law regardless of race. That guarantee would be hollow if governments could intentionally achieve discriminatory ends under cover of neutral means. Therefore, even facially neutral laws are subject to the highest level of judicial scrutiny if they are passed with discriminatory intent and disproportionately impact a particular racial group. The Fairfax County School Board did just that when it passed the new admissions policy (Policy) for Thomas Jefferson High School (TJ). The Policy reduced offers of enrollment to Asian students at TJ by 26% while increasing enrollment of every other racial group.* This was no accident. The Board intended to alter the racial composition of the school in exactly this way—as demonstrated by a resolution it adopted saying as much, the racial data it requested and considered in the process, the means it selected, and the candor of individual Board members’ internal discussions. In the face of this evidence, the Board does not attempt to justify its Policy under strict scrutiny.
The majority, however, refuses to look past the Policy’s neutral varnish. Because the evidence shows an undisputed racial motivation and an undeniable racial result, I respectfully dissent.
Law professor Ilya Somin at Volokh Conspiracy describes what was wrong with the majority opinion:
In 2020, TJ adopted a new admissions policy that, while racially neutral on its face, was actually intended to reduce the percentage of Asian-American applicants accepted at the school, in order to increase the percentage of other groups, so as to get a student body closer to the population demographics of Fairfax County. Federal district Judge Claude Hilton ruled that the new policy unconstitutional because it was adopted for the purpose of promoting “racial balancing” and also motivated by hostility towards Asians.
Today’s Fourth Circuit not only (wrongly, in my view) reverses the district court decision, but does so in a way that sets a dangerous precedent that would allow a wide range of government policies discriminating against various minority groups….
Longstanding Supreme Court precedent holds that evidence of unconstitutional motivation for “facially neutral” policies shifts the burden of proof to the government to show that they would have enacted the same policy even in the absence of illicit motives. If they fail to prove that, then the policy must be subjected to strict scrutiny, which it would be unlikely to survive. In the TJ case, the Fourth Circuit majority opinion by Judge Robert Bruce King holds that even the most blatant discriminatory motivations do not trigger strict scrutiny so long as the group being targeted for discrimination by “facially neutral” means is still represented in proportion to its percentage of the relevant population (or more). Under the new admissions policy, Asians were still 54% of accepted applicants (as compared to 73% under the old one). Since that is still higher than the Asian percentage of the applicant pool, evidence of discriminatory intent becomes irrelevant ….
This was a stunning part of the holding that jumped out at me also. Since Asians still were admitted higher than their percentage of the population, the appeals court dismissed their claim of a constitutional violation. The Dissent made this point about it:
[T]he majority rejects the very possibility that a State could ever discriminate against a racial group by intentionally reducing its success in a competitive process to a level equal with that of other races. According to the majority, the Board could not have
discriminated against Asian students by reducing their success rate—even intentionally and with a discriminatory purpose—so long as Asian students remain no less successful than students of other races. I don’t see why not. “Invidious discrimination does not become less so because the discrimination accomplished is of a lesser magnitude.” Feeney, 442 U.S. at 277. If a State enacts a policy with the purpose and effect of trimming down the success of one particular racial group to a level the State finds more appropriate, it has discriminated against that racial group.
Coalition for TJ has vowed to fight on:
The Coalition for TJ remains steadfast in its mission to protect equal opportunity under the law, despite the decision by the Fourth Circuit Court of Appeals allowing the new racist, anti-merit admissions policy implemented by the Fairfax County School Board for Thomas Jefferson High School for Science and Technology. We expected the ruling, and we are heartened by the dedication and expertise of our legal team at the Pacific Legal Foundation, which will continue to advocate for fairness and merit-based admissions by taking this case to the United States Supreme Court.
BREAKING. Statement from @CoalitionForTJ:
We look forward to VICTORY with @PacificLegal against the racist #UnFairfax School Board in the U.S. Supreme Court! We fight for all kids.
May 23, 2023
Coalition for TJ Affirms Commitment to Equal Opportunity in Admissions to Thomas… pic.twitter.com/7VQrhjSECY
— Coalition for TJ #FightingForMerit (@coalitionforTJ) May 23, 2023
Pacific Legal issued this statement:
Today, the Fourth Circuit Court of Appeals dealt a blow to equality before the law, tossing out a lower court’s ruling that Fairfax County school officials violated the Constitution when they changed admissions requirements to achieve a balance among the races of attendees of the highly acclaimed Thomas Jefferson High School (TJ).
“We are disappointed by today’s ruling, but we are not discouraged,” said Pacific Legal Foundation attorney Erin Wilcox. “Discrimination against students based on their race is wrong and violates the Constitution’s guarantee of equal protection. We look forward to asking the Supreme Court to end this illegal practice once and for all.”
The lawsuit challenges the school’s admissions process, which aims to reduce the number of Asian American students admitted to TJ and increase students of other races, in the name of “racial equity.” The Fourth Circuit’s ruling means a third incoming class at TJ will now be subjected to the unconstitutional admissions process.
What do I think happens?
SCOTUS strikes down affirmative action in the Harvard and UNC cases later next month, ruling that the 2003 Grutter v. Bollinger case no longer is good law. Since this 4th Circuit decision relied on Grutter, SCOTUS will vacate the 4th Circuit decision and remand for further consideration in light of its rulings in Harvard and UNC.
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Old and busted: It’s good to be a minority.
New hotness: Only if you’re the right color minority.
Selective racism codified. Isn’t there an Equal Protection clause in the Constitution somewhere?
But of course, we can lower/remove admission criteria for illegals. Does that include the ChiComs and terrorists that come through the Biden floodgates?
The 14th Amendment…the one Biden and Fetterman believe is about unfettered (he heh) executive right to expend as much money as it likes without legislative approval.
Until 1943 when the needs of the war made it necessary to repeal the 1882 Chinese Exclusion Act, Chinese in this country were legally not human beings and not protected by the law and the Constitution. When it was repealed, my father who was not considered a person under American law, was a food service manager at the then Lowry Army Air Force Base. As soon as he became people, despite being 30 years old which is old to start being a soldier, he immediately enlisted. He was a combat infantryman and eventually a squad leader who fought his way across Europe in Patton’s 3rd Army. His company liberated the last concentration camp in Nazi hands [Gunzkirchen sub-camp of Matthausen]. He got his citizenship after the war for his service.
I got mine the easy way, being born here.
We remember, and we will not forget.
I was just about to post: “The Chinese exclusion Act is baaa-aaaaack!” but you beat me to it.
“Last year, the Fairfax County Public Schools’ board and superintendent adopted an admissions policy aimed at balancing the racial groups at TJ by eliminating the admissions test… dramatically reducing the number of Asian-American students admitted to TJ.”
Great. Now whatever proportion of the Asians in Fairfax County have been voting Democrat will cut it he hell out.
It’s too damn bad that it takes a kick in the balls to open some people’s eyes.
Now they’re coming for you, bạn bè. Would you like us to speak up… like you didn’t?
If Asians are so smart how come most of them vote Democrat?
Jews, too. Bennies for babies, perhaps. The intoxicating elixir of redistributive change (i.e. trickle-down economics at the State’s pleasure), probably. Never again, and again, and again.
Because it is better to Feel like you are doing something about a problem than to actually do something about a problem.
If Asians are so smart how come most of them vote Democrat?
Funny, that. Democrats were originally those who toiled for a living, but in the last couple of decades, the toilers have vanished and the ‘educated’ (some vastly rich ones, too, mostly whites) have replaced them – and also jammed the rudder hard left. It’s not surprising that the Chinese might prefer their company, BUT now, ding! – those whites are educated racists, and totally willing to sacrifice smart Chinese students to cram more blacks into the TJ student body, just for appearances.
Maybe we can have internment camps for Asian overachievers.
Chinese Immigration and the Chinese Exclusion Acts
In the 1850s, Chinese workers migrated to the United States, first to work in the gold mines, but also to take agricultural jobs, and factory work, especially in the garment industry.
American objections to Chinese immigration took many forms, and generally stemmed from economic and cultural tensions, as well as ethnic discrimination. Most Chinese laborers who came to the United States did so in order to send money back to China to support their families there. At the same time, they also had to repay loans to the Chinese merchants who paid their passage to America.
In 1879, advocates of immigration restriction succeeded in introducing and passing legislation in Congress to limit the number of Chinese arriving to fifteen per ship or vessel. Republican President Rutherford B. Hayes vetoed the bill because it violated U.S. treaty agreements with China. Nevertheless, it was still an important victory for advocates of exclusion. Democrats, led by supporters in the West, advocated for all-out exclusion of Chinese immigrants. Although Republicans were largely sympathetic to western concerns, they were committed to a platform of free immigration. In order to placate the western states without offending China, President Hayes sought a revision of the Burlingame-Seward Treaty in which China agreed to limit immigration to the United States.
Everything old is new again.
The 4th Circuit Ct of Appeals may always be relied upon to reach the result most favored by far-left Dems. They are much better Dems than jurists.
Let’s hope this is appealed to the Supreme Court where I am certain this will be reversed. The 4th Circuit, as you rightfully observe, is dominated by Leftists.
I guessed, since I’m not a lawyer, that the 4th circuit opinion was credential enhancement by the majority knowing the UNC opinion will soon…hopefully make their ruling null.
That’s a good observation. A couple of Appellate Judges auditioning for potential appointments to SCOTUS or election/appointment to a State Supreme Court with their flawed majority opinion.
So naked racism is legal at least when it serves the left’s agenda.
The two-tiered justice system remains intact.
The left would be nothing without racism and the holy sacrament of abortion.
Critical Racists’ Theory (CRT) presumes diversitism (i.e. color judgment, class-based bigotry); racism, sexism, ageism, etc. That said, like so many articles of faith (e.g. evolutionary creationism, “Big Bang Theory”, signals of undetermined fidelity from outside the solar system, delivery by Stork thus the age of viability or convenience in abortionist doctrine, a boy is a girl is a pride parade with cubs in tow), some people want to believe.
Some newly minted Asians for DeSantis voters in Virginia.
Unlikely. Democrats burn Blacks with massive immigration that creates mass unemployment for them and they still vote 95% Democrat. I see no evidence that anything Democrats do to harm their voting base, short of public executions, will cause defection.
Not so sure about public executions. Allowing Blacks to kill each other at twice the prior rates via reducing police forces didn’t reduce Black love of the DNC.
The difference is that Asians can think beyond their own noses.
The lineup for this fiasco:
District Court judge who issued the ‘stop sticking it to Asian extraction candidates:’ opinion
Claude Hilton, nominated by Reagan
The 4th Circuit duo of “Reverse! stick it to those ‘white-adjacents'”
Robert King, a Billyboy nominee
Toby Heytens, a Slowy nominee
The dissenter who would have upheld the District Court:
Allison Rushing, a Big Don nominee.
Now, tell me you are surprised by who nominated the judges.
Also, do you buy John G. Roberts’s assertion that there’s no such thing as Big Don judges or Obama judges, just hard working umpires calling them as they see them?
Not any more. Prior to FDR that was the case. At first change was slow, but it has taken over everything. And CJ Roberts knows it.
The District Court found as a fact:
Here, no dispute of material fact exists regarding any of the Arlington Heights factors, nor as to the ultimate question that the Board acted with discriminatory intent.
Shouldn’t this finding of fact be respected and the school district’s intentional discrimination be banned?
When first we practice diversity (i.e. color judgment, class-based bigotry), congruence (“=”), and selection (e.g. Pro-Choice ethical religion).
Affirmative action, not affirmative discrimination.
Diversity of individuals, minority of one. #PrinciplesMatter #HateLovesAbortion
Anybody who has Asian friends knows well why they tend to succeed: family and hard work. Those are, natch, the two things “progressives” hate the most.
I have been involved in interviewing H.S. Seniors looking to be admitted to my alma mater. What I found was:
1) Mom and Dad are married and live in the same household with the kids.
2) At least one of them has a professional job (there was one exception in all the years I did this).
3) No more than 2 kids, both of whom were born after their parents were married.
4) Education is the #1 priority for the kids. They often go to some kind of school on Saturday morning.
5) The kids generally do not play team sports. There were 3 exceptions; Archery, Golf and Tennis. In those cases they were non-contact and no one had any pretensions that they were going to pursue them professionally or use them to get into college.
6) They generally had an involvement in music performance. Violin and piano were the preferred ones. There is a *strong* link between music and math facility.
Mind you, all this was generally found among the white kids who I interviewed as well. But that’s the point – this is what leads to academic success. Adopt these behaviors and you’ll succeed. Don’t and things will be harder for you if you want to achieve academic success.
I’ve been looking at kids graduating #1 or #2 in my small rural school system for over 20 years now, as the number of graduates has dwindled down from 100 or so to 50 or so.
1) Yep- every time
2) Father working, mother stay at home for most of the children’s childhood. Not a lot of “professional” jobs, likely as you refer to them. I had 3 children in those slots- I’m a boiler operator/stationary engineer.
3) Most had 3 to 5 (5 for us, 5 for last years valedictorian).
4) Saturday morning school? In ruralville? Yeah, no. Education was a priority, not the priority.
5) The graduates, both male and female, but for one exception I know of- last years #1, were involved in team sports. Even football. No soccer in the school- some played team soccer in outside of school leagues. No pretensions of going pro. That was for the people graduating in the bottom of the class. Track the most common.
6) Some were into music, Some not. Some into school and community plays. Several on the school chess team or masterminds. Or both…
7) Most were active in church, Scouts, dance (including ballet), martial arts, or some sort of other activity outside school. They were kept busy- which kept them away from drugs. Are there a lot of drugs in ruralville? Yes. The druggies graduate in the bottom half of the class- if they graduate at all.
And 100% of them were white. Few Asians in our area.
I had a talk with the father of last years #1 graduate- his other 4 kids all graduated at or near the top of the class- like mine. He was shocked that I didn’t pay nor reward my children for good grades. I didn’t- my wife and I simply expected them to do well. I was equally shocked to find he DID pay his kids for “A”s.
“the challenged admissions policy’s central aim is to equalize opportunity for those students hoping to attend one of the nation’s best public schools”
What I find ironic is that the new admissions policy’s result is going to necessarily be a lowering of standards, thus undermining the school’s status as one of the best public schools, and eliminating the purpose behind the desire to attend.
What they’re basically saying is that they don’t want the school to be one of the best in the nation any more.
Regarding another point made in the comments: I don’t think skin tone is the reason liberals aren’t as supportive of asians as they are other minorities. I think it’s because they are well aware that asians aren’t dependent upon them. Liberals are racists. they see themselves as superior to those lowly minorities. But asian success, both academically and economically, reveals that to be a lie. Asians are not dependent upon benevolent white liberals for their success, they can achieve it on their own. The left cannot tolerate that, it offends their self image as the benevolent rulers of inherently inferior beings.
What they’re basically saying is that they don’t want the school to be one of the best in the nation any more.
Oh, they think it won’t change a bit. They’re the same party who thinks that the public purse is infinitely large, and that they can buy elections forever by indebting their grandchildren. Likewise, they think TJ will remain the tops regardless of the expulsion of those who actually do well on competitive exams.
” … indebting their grandchildren.”
You think our grandchildren will be able to finish paying this off?
What the 4th Circuit is saying is that black students cannot handle the rigors of a heavy STEM program. Only by eliminating the competitive test and setting a quota can black enrollment be increased. The Court is validating that equality is a myth, and that some of the population is unable to compete without government’s thumb on the scale.
It is easy to predict that that the lesser qualified will graduate at a high rate, regardless of their actual academic performance. The fix is in.
The majority decision relied on the concept of group rights. The country’s founding documents address individuals, not groups. The high school clearly discriminated against individuals
SCOTUS needs to finally put this evil, indefensible, unconstitutional, inequitable and Dumb-o-crat-sponsored, state-endorsed racism to rest. It was a black day when then-Justice O’Connor and a similarly naive and misguided majority gave the Court’s imprimatur to this awful conceit and opened the door for schools to invoke race as a factor in school admissions, in the first place, under the alleged rubric of achieving so-called “diversity.”
But that was supposed to last only 25 years, remember?
Could this decision go to the full Fourth Circuit before the upcoming USSC decisions?
Not enough time. The Scouts decisions in the Harvard/UNC cases will come down in the next month. 4th Cir en banc review would take months,
If you need more proof as to Marxist brainwashing being substituted for education, see here https://www.thefp.com/p/judges-ruin-high-school-debate-tournaments
It is very concerning that this madness has grown to include technical fields. The game, until recently, was for huge companies grab Ivy League token graduates, and to very quickly promote them to ridiculously high management levels. This afforded them a high salary, prestige and a staff who would do all of the actual work. Under no circumstances were they assigned positions in which their complete ineptitude would be obvious. Now they are becoming medical doctors and rocket scientists!
Funny how M.I.T., an educational institution that is just as prestigious as Harvard and is in fact on the other end of the same street in Cambridge, Mass. has an undergraduate student body where 34% are of Asian heritage. Harvard *must* be discriminating on the basis of race, which is the textbook definition of racism.
Well, that’s a simple fallacy. It’s like arguing that a town’s military academy has many fewer women than its school of dance, thus they re discriminating. There’s discrimination, all right, but not on the part of the schools. Perhaps more Asians prefer studying profitable engineering than vacuous woke bullshit.
In other words, the two judges of the 4th Circuit majority ruled that Grutter mandates a minimum rationality standard. No strict scrutiny when the “wrong” groups are being discriminated against, and Constitutional protections (and the Civil Rights Acts) do not apply. Will the Supreme Court end this madness?
Hey, is there a philanthropist willing to open a college that will accept and grade on merit ONLY? Beside the Chinese Communist Party? Or willing to endow Hillsdale with a full STEM department? Mr Musk? Can you spare a $Billion or so?
The deeper we get into “diversity” the more the country slips backward. Maybe there was something to the idea of allowing only voters with a vested positive interest in the country to vote?
Usually Asians have to strive much harder in all walks of life because that is expected. Now striving harder is a barrier. Asians were barred from entering the US up till the 1965 Immigration act. That Immigration act brought in the high achievers, and since then, Asia is going through the “brain drain” while the US is benefiting from the “brain gain” .
Americans do not know about Asian history and geopolitics enough to deal with Asians. That is a draw back in the 21st century when Asian powers are rising
Very disappointing decision by Judge Robert Bruce King. It’s a shame the decision wasn’t made by the other Judge Robert King. The result would have been different, I’d guess.