The Supreme Court on Tuesday declined to hear a challenge to new admissions criteria at an elite public high school in Virginia that eliminated standardized tests, paving the way for the use of a policy aimed at diversifying the school’s student body.
As usual, the court did not give reasons for dismissing the case. Justice Samuel A. Alito Jr. issued a dissent, joined by Justice Clarence Thomas, that harshly criticized the appeals court’s decision in the case upholding the new criteria and rejecting the challengers’ argument that they illegally disadvantaged Asian Americans.
“The willingness of the Supreme Court to swallow the dissenting decision below is hard to understand,” Justice Alito wrote. “We should wipe the decision off the books, and since the court refuses to do so, I must respectfully dissent.”
The Supreme Court struck down the racial admissions programs at Harvard and the University of North Carolina in June, but left open the constitutionality of admissions standards that do not directly factor race into enrollment diversity. However, the majority opinion, by Chief Justice John. G. Roberts, quoted an earlier decision which said, “what cannot be done directly cannot be done indirectly”.
The court’s decision not to take up the case from Virginia, along with an order this month that refused to block West Point’s admissions program, suggests most of the justices are reluctant to take immediate action to explore its limits. of his decision from June.
Revisions to Virginia’s admissions program followed protests over the killing of George Floyd in 2020. Amid concerns about how few Black and Hispanic students were attending the school, one of the nation’s top public high schools, Thomas Jefferson High School for Science and Technology in Alexandria, Va. The school board rejected a strict entrance exam and offered admission to the top students from each high school in the district rather than the top applicants from any school.
Admissions officers were also instructed to consider “experience factors,” such as whether students were poor, English learners or attended a “historically underrepresented” high school. But officers were not told the race, gender or name of any applicant.
A group of parents, many of them Asian American, opposed the plan and, calling themselves the Coalition for TJ, sued to stop it.
But a divided three-judge panel of the US Court of Appeals for the Fourth Circuit in Richmond, Virginia, ruled in May that Thomas Jefferson did not discriminate in his admissions. The Pacific Legal Foundation, a libertarian legal group representing the parents, asked the Supreme Court to hear their appeal, saying the new admissions plan was “deliberately designed to achieve the same results as overt racial discrimination.”
The Supreme Court’s June decision in Students for Fair Admissions v. Harvard, the coalition’s petition said, “may mean little if schools could achieve the same discriminatory effect through race-neutral proxies.”
The school board’s attorneys countered that the new admissions criteria had nothing to do with race and focused on removing socioeconomic and geographic barriers.
“The new policy is both race neutral and race blind,” the school board’s brief statement said. “It was not designed to produce, and in fact did not produce, a student population that approximates the racial demographics of Fairfax County or any other predetermined racial balance.”
After the changes took effect in 2021, the percentage of Asian American students offered admission dropped to 54 percent from 73 percent. The percentage of black students rose to 8 percent from no more than 2 percent. The percentage of Hispanic students increased to 11 percent from 3 percent; and the percentage of white students increased to 22 percent from 18 percent.
In the Fairfax County school system in 2020, about 37 percent of students were white, 27 percent were Hispanic, 20 percent were Asian, and 10 percent were black.
Writing for the majority in the appeals court decision in May, Justice Robert B. King, who was appointed by President Bill Clinton, said the before-and-after numbers were not the right place to start. That, he said, quoting from the school board’s summary report, would turn “the previous status quo into an unchanged quota.”
He added that the school had a legitimate interest in “broadening the range of students”.
Justice Alito, dissenting on Tuesday, questioned that reasoning. “What the majority of the Fourth Circuit has held, in essence, is that intentional racial discrimination is constitutional so long as it is not too egregious,” Justice Alito wrote. “This reasoning is unacceptable and calls for correction.”
He elaborated, citing an earlier decision. “Although the new policy put a ‘heavier burden’ on Asian American applicants (because it reduced their chances of admission while improving the chances of every other racial group), the majority of the panel found that there was no disparate impact because they were still overrepresented in the student body of TJ,” Justice Alito wrote.
He added: “This is a clearly flawed understanding of what it means for a law or policy to have a disparate impact on members of a particular racial or ethnic group. Under the old policy, every Asian American applicant had a certain chance of admission. Under the new policy, this probability has been significantly reduced, while the probability of admission for members of other racial and ethnic groups has increased.”
Dissenting in the Fourth Circuit, Judge Alison J. Rushing, who was appointed by President Donald J. Trump, made a similar remark. The majority, he wrote, had refused “to look beyond the neutral veneer of the policy” and instead saw “an unmistakable racial motive and an unmistakable racial result.”
The ruling reversed a 2022 ruling by Judge Claude M. Hilton of the Federal District Court in Alexandria, who found that the changes made by the school board had disproportionately burdened Asian American students and were “racially motivated.” The discussion of the planned changes, he wrote, “has been tainted by the discussion of racial balance from its inception.”
“It is clear that Asian American students are disproportionately harmed by the board’s decision to review TJ admissions,” Judge Hilton wrote. “Today and in the future, Asian American applicants are disproportionately denied a level playing field.”
The Supreme Court has already had a meeting with the case, Coalition for TJ v. Fairfax County School Board, No. 23-170.
In April 2022, the court rejected an emergency request by the coalition to block the new admissions criteria while the case proceeded. That was before the court’s ruling in June that banned race-conscious higher education admissions.
Even so, the three most conservative members of the court – Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch – said they would have accepted the request.
