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:
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.
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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