SCOTUS Refuses to Take “Race-Neutral” School Discrimination Case – Justices Alito and Thomas Blast Decision

SCOTUS Refuses to Take “Race-Neutral” School Discrimination Case – Justices Alito and Thomas Blast Decision

For almost three years we have been covering the case of a Virginia High School that changed its admission processes in a way that was supposedly “race-neutral” but that had an immediate and large, negative effect on Asian student enrollment. These changes included eliminating standardized, merit-based testing and using enrollment quota systems at middle schools that demographically boosted Black and Hispanic student enrollment at the expense of Asian students.

The parents of the Asian students affected by these changes formed the “Coalition for TJ” to challenge these practices at Virginia’s elite Thomas Jefferson High School for Science and Technology (TJ), eventually filing a federal lawsuit with the Pacific Legal Foundation’s help: Lawsuit Alleges Anti-Asian Discrimination In Admissions Change At Top-Ranked Virginia High School:

We have been tracking the litigation against Harvard University alleging that affirmative action admissions policies are intended to and do discriminate primarily against Asian-American applicants, but also whites. A request has been filed for the Supreme Court to take the case after both the district and appeals courts ruled that while Harvard did discriminate, such discrimination was done lawfully.

There are a growing number of such discrimination claims around the country, as Critical Race activists demand elimination of standardized test and other academic scores even at the high school level in order to achieve “equity” of racial and ethnic groups.

Professor Jacobson’s post on this case quoted an AP article about it:

Located in the suburbs of the nation’s capital, the school is frequently ranked as the best in the country, and families plan for years to try to help their children gain admission.

The student body is 70% Asian American, with minuscule numbers of Black and Hispanic students.

The Fairfax County school board voted last year to revise the admissions process and eliminate a standardized test that had been a key part of the evaluation process. It also set aside a specific number of slots for students at each of the middle schools in the county.

Board members have said they hope the new process increases Black and Hispanic representation in the student body.

The lawsuit, though, alleges that the set-asides will end up hurting Asian American families that are clustered in a handful of middle schools that currently send large numbers of students to “TJ,” as the school is known.

The lawsuit’s Complaint explained the case:

Overwhelming public evidence exists that the new TJ admissions process was adopted with the purpose of disadvantaging Asian-American students and reducing Asian-American enrollment at TJ. As such, these changes violate the Equal Protection Clause.

And fortunately, after about a year of litigation, the Coalition for TJ won the case!: “The American dream won!” Virginia Anti-Asian School Admission Scheme Halted By Federal Judge.

The federal court explained why:

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….

[emphasis added]

We won! You won! Our families stood up with moral courage against racism. @coalitionforTJ and @PacificLegal won! Judge Claude Hilton ruled today that Fairfax County Public Schools is racist and discriminatory in its new admissions policy. It must end! https://t.co/7O0mZVThdP

— Coalition for TJ #FightingForMerit (@coalitionforTJ) February 25, 2022

Unfortunately, the school board appealed the judge’s ruling, and in a 2-1 decision, the Fourth Circuit U.S. Court of Appeals overturned the Virginia federal judge’s opinion, as Professor Jacobson reported: 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.

The court’s decision hinged on the fact that even after having Asian-American student enrollment slashed by 26%, while every other demographic group’s enrollment increased, Asian-American students were present at TJ in numbers greater than their percentage of the population. That was okay, said the court.

So the Coalition for TJ appealed to the U.S. Supreme Court, explaining in detail why this case was so important and explaining how the Fourth Circuit had erred in its analysis.

We here at Legal Insurrection and specifically at the Legal Insurrection Foundation’s Equal Protection Project (EPP) were particularly concerned about the Fourth Circuit’s ruling, and were convinced of its impropriety on the facts and the law, and so EPP drafted and submitted an amicus curiae brief to the Court supporting the Coalition, as we reported: Equal Protection Project Files SCOTUS Brief Supporting Asian Students in Coalition for TJ Case

In the report, we noted that since the Fourth Circuit’s opinion had issued, the Supreme Court’s released its Harvard affirmative action opinion striking down explicit race-based admissions. But this led to groups intent on continuing the use of race in admissions to go underground, which is exactly what the school board in the Coalition for TJ case had done:

[T]here 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….

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.

In our brief, we made three key arguments which had not been made by the Coalition in their brief asking SCOTUS to take the case:

• First, we explained that part of the Fourth Circuit’s reasoning was that “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.” But that was legally erroneous after the Supreme Court explained in its Harvard opinion, which issued a month after the Fourth Circuit’s opinion came out, that school admissions is a zero-sum game.
• Second, the Fourth Circuit had found that “diversity” was a legitimate consideration in school admissions, but in the Harvard case the Supreme Court rejected that notion: “[J]ust as the alleged educational benefits of segregation were insufficient to justify racial discrimination [in the 1950s] … the alleged educational benefits of diversity cannot justify racial discrimination today.”
• Third, unlike the Coalition, which was asking SCOTUS to take the case, with the goal of later convincing the Justices to overturn the Fourth Circuit’s errant opinion, we suggested a middle ground — sending the case back to the Fourth Circuit for a “re-do” in light of the later issued Harvard case opinion. That would give the Fourth Circuit another chance to take a look at the case and see if their opinion still stands after Harvard. This procedure, called GVR, for grant certiorari, vacate the lower court’s opinion, and remand for reconsideration, is fairly common in cases where the Court issues a key opinion after the lower court’s ruling, as happened here.

Unfortunately, we just found out that SCOTUS has declined to take the case at all, although Justice Alito, joined by Justice Thomas objected and issued a rare dissent from the Court’s refusal to take the case.

From Fox News: Alito issues fiery 10-page dissent as Supreme Court declines to review elite high school admissions case:

Two of the Supreme Court’s conservative justices issued a fiery dissent Tuesday after the high court declined to hear a case challenging a Virginia high school’s admissions program that allegedly discriminates against Asian Americans….

Justices Samuel Alito, joined by Justice Clarence Thomas, dissented from the court’s denial on Tuesday, calling the lower court’s decision in the case “patently incorrect and dangerous.”

“What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe. This reasoning is indefensible, and it cries out for correction,” Alito said in his 10-page dissent….

“Asian-American students, many of whom are immigrants or the children of immigrants, have often seen admission to TJ as a ticket to the American dream,” Alito wrote in his dissent.

“In this respect, their aspirations mirror those of young people from other immigrant groups. Public magnet schools with competitive admissions based on standardized tests have served as engines of social mobility by providing unique opportunities for minorities and the children of immigrants, and these students’ subsequent careers have in turn richly contributed to our country’s success,” he continued.

Alito explained that the Court of Appeal’s decision, in his view, was “indefensible” because, under its reasoning, the school could have adopted a policy designed solely to reduce the Asian-American offer rate and still evade liability.

You can review the 10-page dissent here.

It is great reading and is exactly right.

The worst part is that this now other lower courts can using the Coalition for TJ case as a roadmap for how to evade Supreme Court review while racially discriminating.

The good news is that the Boston Zip Code case mentioned above is about to go to the Supreme Court.

From our report: Appeals Court Upholds Boston ‘Zip Code Quota Plan’ Discriminating Against Asian and White Students:

[In] the Boston Zip Code case, the First Circuit U.S. Court of Appeals, which is overseeing the appeal in that case, has just ruled on the appeal and says that the School Committee’s discriminatory plan is constitutional.

From the opinion:

[W]ith respect to the prior year, the percentages of invited students classified as White dropped from 40% to 31%, while the percentage classified as Asian dropped from 21% to 18%….

More evidence of intent does not change the result of this case, given that our analysis assumes that the Plan was chosen precisely to alter racial demographics. We recognize that the text messages evince animus toward those White parents who opposed the Plan. But the district court supportably found as fact that the added element of animus played no causal role that was not fully and sufficiently played by the motive of reducing the under-representation of Black and Latinx students….So, we need not decide what to make of a case in which a school district took action to reduce a numerically over-represented group’s share of admissions because of animus toward that group….

For the foregoing reasons, we affirm the district court’s…judgment rejecting the Coalition’s challenges to the Plan.

[emphasis added]

I predict that I am going to reread that opinion about eight more times so that I can figure out how they determined that a case involving clear disparate impact caused by obvious and undisputed racial animus constituted no constitutional violation.

In my opinion, the chances of the Boston parents asking the U.S. Supreme Court to review this case are near 100%….

And EPP will be there to support the Boston parents with an amicus brief, like we did the Virginia parents.

This underhanded, “race-neutral means” subterfuge has got to be stopped.

The reason I called this “good news” is that the Boston case is much more egregious (in my opinion) than the Coalition for TJ case. First, the First Circuit held that racial animus, a clear intent to racially discriminate, and an undisputed racially discriminatory impact were not enough to violate the Constitution. That cannot be right, and it seems to me to be much more starkly presented than it was in the Coalition for TJ case.

Second, the district, or trial-level court, in the Boston case, also made the same mistake, as we explained:

[I]n 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.

These holdings at both the trial and appellate federal court level are so blatantly wrong that I predict that there is enough there to grab the attention of at least two more of the conservative justices on the Supreme Court, and it only takes four to take the case.

So I am cautiously optimistic, and, as mentioned, EPP will be there to support the Boston parents.

We will update you when the Boston Parents group asks SCOTUS to take the case, and when EPP submits its amicus brief in support thereof.

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