As you know, in late June, the United States Supreme Court ruled in the Students for Fair Admissions cases that universities cannot use “affirmative action,” or considerations of race, in their admissions policies: Supreme Court: Harvard and UNC Affirmative Action “invalidated under the Equal Protection Clause of the Fourteenth Amendment”
The U.S. Supreme Court has dealt a blow to race-based affirmative action in college admissions and by implication elsewhere, putting to an end a narrow carve-out for higher education that had permitted colleges and universities to engage in otherwise unlawful conduct in the name of promoting diversity.
As Chief Justice John Roberts stated:
the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.
So far, so good.
The problem is that Harvard and other academic institutions have not lost their desire to base admissions on race improperly, and now they know that they have to go underground to do so. As we reported, SCOTUS “gave universities a narrow opening, and Harvard just announced it’s going to drive an affirmative action truck right through it”:
[T]here is one really important point that came near the end of the majority opinion that is a narrow path to consider applicant’s experience on race (as opposed to their race itself)(emphasis added):At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.
Harvard and others intend to use that language to undermine Students for Fair Admissions and continue to use race as a factor in admissions. That much is clear.
But there is also another method that entities bent on the improper use of race can use to racially discriminate; namely, the use of some sort of supposedly “race-neutral” means or scheme to enact the same sort of racially discriminatory school admissions that we saw at Harvard and UNC.
For example, there is a case in Boston where the Boston Public School Committee, instead of using a blatantly racist quota system, used the zip codes of where potential high school students lived to discriminate against white and Asian students, thereby accomplishing the same thing, as we reported: As Predicted, Boston “Zip Code Quota Plan” For Elite Public Schools Reduced Asian and White Admissions, Raised Black and Latino.
Other cases have popped up in Maryland, New York, and other places, all bearing the same earmarks: using a “race-neutral” scheme to accomplish a discriminatory purpose.
The problem is that many courts have rewarded this type of subterfuge. For example, in the Boston Zip Code case, School Committee members made blatantly racist statements against whites, such as that they hated majority white West Roxbury, Massachusetts, and that they were “sick of westie whites” while they were enacting the zip code plan that discriminated against whites and Asian students. And yet the court, after a coalition of parents sued the school district, gave them a pass:
This Plan is not the celebrated result of transcending racial classifications that this Court once found it to be. Three of the seven School Committee members harbored some form of racial animus, and it is clear from the new record that the race-neutral criteria were chosen precisely because of their effect on racial demographics. In other words, but for the increase in Black and Latinx students at the Exam Schools, the Plan’s race-neutral criteria would not have been chosen. . . . [But, t]he Plan’s criteria are all facially race neutral. The precedent is clear that when the governmental action is facially race neutral, ‘good faith [is] presumed in the absence of a showing to the contrary,’ i.e., unless the plaintiff proves disparate impact and discriminatory animus under Arlington Heights.
Did you catch that? Essentially the court said that even if discriminatory intent, in the form of blatantly racist statements, is crystal clear, and even if those statements are combined with, and caused an undisputed dramatic racial impact, the mere use of a race-neutral scheme magically makes the plan constitutional.
That cannot be right.
A similar thing happened in Fairfax County, Virginia, at the Thomas Jefferson High School for Science and Technology (also known as “TJ”), one of the best high schools in the country. But the “Coalition for TJ,” a group of TJ parents upset about a new admissions policy that was supposedly race-neutral, but that would (and did) cause Asian high school student admissions to plummet, sued TJ, and initially won the case in the Virginia federal district court:
Throughout this process, Board members and high-level FCPS officials expressed their desire to remake TJ admissions because they were dissatisfied with the racial composition of the school. A means to accomplish their goal of achieving racial balance was to decrease enrollment of the only racial group “overrepresented” at TJ-Asian Americans. The Board employed proxies that disproportionately burden Asian-American students. Asian Americans received far fewer offers to TJ after the Board’s admissions policy overhaul…Whether accomplished overtly or through proxies, racial balancing is not [constitutional]…The proper remedy for a legal provision enacted with discriminatory intent is invalidation…For the foregoing reasons, Plaintiff The Coalition for TJ is entitled to summary judgment.
But then a three judge panel of the U.S. Court of Appeals for the Fourth Circuit (which covers Maryland, the Carolinas, and Virginia and West Virginia) reversed the district court 2-1, over a dissent by Judge Allison Jones Rushing:
[T]he Coalition embraces the district court’s ultimate, “Hail-Mary” line of reasoning: that the Board must have discriminated against Asian American students “by proxy.” Specifically, that proposition maintains that the Board sought to increase the number of Black and Hispanic students enrolled at TJ and, in the “zero-sum environment” of school admissions where the number of available seats is finite, that effort naturally led to fewer overall Asian American students enrolling at TJ — thus exposing a discriminatory intent toward those students. As the court put it, the challenged admissions policy “was designed to increase Black and Hispanic enrollment, which would, by necessity, decrease the representation of Asian-Americans at TJ.” Accordingly, the court related, “the Board acted at least in part because of, not merely in spite of, the policy’s adverse effects” on Asian American students. But that inferential leap rests on unsteady ground, because its basic rationale has been pointedly rejected by the Supreme Court.
The following video has a good summary of where things stood following the Fourth Circuit’s decision:
The Fourth Circuit also ruled that the Defendant School Board should win because all they were doing was trying to improve diversity, which was allowed by the Supreme Court.
The Fourth Circuit’s ruling issued on May 23, 2023, and just over a month later, on June 29, 2023, the U.S. Supreme Court issued Students for Fair Admissions.
Less than two months later, on August 21, 2023, the Coalition for TJ asked the Supreme Court to take the case.
You can review the Supreme Court’s docket here, and the Petitioner’s Brief here asking the Court to take the case. The Respondent Fairfax County School Board’s brief is due October 23. The case presents the following question, as set forth in Petitioner’s Brief:
QUESTION PRESENTEDIn 2020, the Fairfax County School Board (Board) overhauled its admissions to Thomas Jefferson High School for Science and Technology (TJ). The Coalition for TJ, a group of parents and students within the school district, alleged that those changes were adopted to racially balance the freshman class by excluding Asian Americans. The district court agreed and granted summary judgment to the Coalition. Over a dissent by Judge Rushing, a panel of the Fourth Circuit reversed. Despite evidence that the Board chose the new criteria to further its racial balancing goal—and evidence that the policy substantially reduced both the raw number and the proportion of Asian Americans admitted—the Fourth Circuit held that the admissions changes did not violate the Equal Protection Clause.The question presented is whether the Board violated the Equal Protection Clause when it overhauled the admissions criteria at TJ.
And now, the Equal Protection Project has filed an amicus (or “friend of the court”) brief, Coalition of TJ v. Fairfax County School Board Amicus Brief of Equal Protection Project 9/22/2023, in support of the Petitioner The Coalition for TJ:
Here is our statement in the Brief of our interest in the case [footnotes omitted]:
INTEREST OF AMICUS CURIAE
The Equal Protection Project (EPP) of the Legal Insurrection Foundation (LIF), a Rhode Island tax-exempt 501(c)(3), is devoted to the fair treatment of all persons without regard to race or ethnicity. Our guiding principle is that there is no “good” form of racism. The remedy for racism never is more racism.Since its creation in February 2023, EPP has filed more than a dozen civil rights complaints, in various fora, against governmental or federally funded entities that have engaged in racially discriminatory conduct in various forms, and its work is ongoing. EPP transparently updates the public on all of its activities at EPP’s own website.Pertinent to our interest in this case, a constant theme that EPP has uncovered in its activities is that entities engaging in racially discriminatory conduct frequently attempt to obfuscate the purpose of such conduct. For example, EPP has documented that many institutions of higher education, even after this Court’s Students for Fair Admissions opinion, will likely continue to discriminate surreptitiously in several ways, including by considering an applicant’s race under the guise of eliciting information regarding an applicant’s experience with race, by dispensing with standardized testing, and by using word games – such as “first generation,” “historically underrepresented group,” or “marginalized populations” – as crude proxies for race and skin color.Nor is the desire to continue engaging in racially discriminatory conduct post- Students for Fair Admissions limited to academia. As EPP recently spotlighted, the use of algorithms, unseen by the public, to racially manipulate pools of job candidates provided to potential employers and recruiters is an emerging trend.EPP’s experience in this area is directly applicable to the instant matter because in this case, the court below improperly endorsed the use of supposedly “race-neutral” means as a pretext and methodology to boost enrollment for preferred minorities while causing non-preferred minority enrollment to plummet. While EPP supports Petitioner’s arguments in favor of the Court granting certiorari, EPP submits this brief to address an area squarely in EPP’s experience – the use of facially race-neutral means as a smokescreen for invidious discrimination to evade this Court’s ruling in Students for Fair Admissions.
Here is our short three-part Summary of Argument:
SUMMARY OF ARGUMENTWhile we believe the opinion of the court below was in error when rendered, it is even more suspect in light of this Court’s Students for Fair Admissions opinion.First, the court below held that there was no intentional discrimination because statements by Respondent Board members in support of increasing enrollment of certain minority groups did not necessarily imply that they intended to discriminate against other minority groups; thus, the court below employed rational basis, not strict scrutiny. See Coalition for TJ v. Fairfax Cnty. Sch. Bd., 68 F.4th 864, 885 (2023)(holding that Petitioner’s argument that increases in black and Hispanic enrollment “naturally led to fewer overall Asian American students” in the “zero-sum environment of school admissions” was an “inferential leap” that “rested on unsteady ground, because its basic rationale has been pointedly rejected by [this] Court.”)(citing cases). But in Students for Fair Admissions, which issued after the opinion of the court below, this Court expressly stated that student “admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” 143 S. Ct. at 2169. Thus, the Fourth Circuit’s decision to employ rational basis scrutiny as opposed to strict scrutiny cannot survive after the recognition in Students for Fair Admissions that racial manipulation in a zero-sum context, such as that here, is subject to strict scrutiny.Second, the Fourth Circuit’s opinion stated that “diversity [was] a compelling state interest,” and therefore that diversity “serve[d], at minimum, as a legitimate interest in the context of public primary and secondary schools.” Id. But diversity was decisively rejected as a compelling state interest in Students for Fair Admissions. See 143 S. Ct. at 2190 (“[J]ust as the allegededucational benefits of segregation were insufficient to justify racial discrimination [in the 1950s] … the alleged educational benefits of diversity cannot justify racial discrimination today.”)(Thomas, J., concurring)(citing Fisher v. Univ. of Tx. at Austin, 570 U.S. 297, 320 (2013)). This Court’s opinion strongly suggested that diversity could not be a legitimate state interest either, due to problems with measurability, lack of a way of establishing a cessation date, and other issues. Indeed, Students for Fair Admissions admonished that “[e]liminating racial discrimination means eliminating all of it.” 143 S. Ct. at 2161. For these reasons, the Court should grant certiorari, vacate the opinion of the court below, and remand (“GVR”) for further consideration in light of Students for Fair Admissions.If, however, the Court considers GVR unworkable in this case, it should grant certiorari to correct the gross legal errors committed by the court below. In addition, as discussed below, other courts have let semantics prevail over substance – they are allowing race-neutral admissions criteria verbiage to launder intentional discrimination. Without the Court’s decisive intervention and course correction in this case, such a legally-sanctioned discriminatory subterfuge will undermine Students for Fair Admissions.In short, should this Court decide to not GVR this case, it should grant certiorari to make clear that racial discrimination through supposedly race-neutral subterfuge is unlawful under Students for Fair Admissions.
Of course you should read the whole thing.
Our brief is unique in that we, unlike the Petitioner Coalition for TJ, suggest to the Supreme Court that they send the case back down to the Fourth Circuit for reexamination in light of Students for Fair Admissions. We think that is important for two reasons: the Fourth Circuit did not have the benefit of the Supreme Court’s guidance on either the “zero-sum environment of school admissions” argument, nor on diversity; in both instances what the Fourth Circuit said was countermanded a month later by the Supreme Court. So, we think the Fourth Circuit should get a re-do in light of the later-issued Students for Fair Admissions, which the Supreme Court often does in cases like this. But if the Supreme Court doesn’t send the case back down to the Fourth Circuit, they need to take the case and reverse the Fourth Circuit’s disastrous ruling, which, like the Boston Zip Code case, allows race-neutral means to be used a smokescreen for invidious racial discrimination.
CLICK HERE FOR FULL VERSION OF THIS STORY