Virginia Attorney General’s office: Selective admissions are racist

Virginia Attorney General’s office: Selective admissions are racist
Mark Herring (Image: YouTube screen grab)

The Virginia attorney general’s office has ruled that the Loudoun County school system committed illegal racial discrimination by admitting fairly few black and Hispanic students to its selective schools, the Academies of Loudoun. For reasons that have nothing to do with racism, the Academies of Loudoun are much more heavily Asian than the Loudoun County Public Schools as a whole, and have fewer blacks, Hispanics, and whites than the Loudoun school district as a whole. The finding of “discrimination” against LCPS is wrong because it is based on a concept of discrimination that likely does not apply to school systems and was based on an apples-to-oranges comparison.

The finding of discrimination doesn’t claim that individual black and Hispanic students were treated differently in admissions than white or Asian students, or that the admissions process was motivated by racism. Rather, it claims that the school district unintentionally “discriminated” by using racially “neutral,” colorblind selection processes that admitted disproportionately fewer blacks and Hispanics than their share of the school district’s overall population.

Such “disproportionality” is deemed discrimination by the Virginia attorney general’s office, when it thinks the school policy producing it either (1) isn’t necessary to achieve an “important educational goal” or (2) when “alternative policies” would supposedly achieve the goal with less “disproportionate” impact on minority groups. The AG’s office concluded that while the schools’ admission policies had a “reasonable relationship to an important educational goal” — enabling students to excel in STEM — there were “alternative policies and practices to meet LCPS’s educational goals” because the County could have admitted more blacks and Hispanics by diluting the rigor of its admission criteria or taking more steps to recruit blacks and Hispanics. (Ironically, the AG’s office cited the progressive school system’s own words against it: It cited the school system’s own confessions of insufficient diversity and past “cultural” insensitivity and its policy revisions over time to attract more minorities as proof that the school system’s selective-admissions policies were not really needed and thus should have been changed sooner).

It thus issued a “reasonable cause” finding of discrimination based on “disparate impact” over the admissions process for the Academies of Loudoun.

But it made this finding of discrimination with hardly any explanation of why “disparate impact” is a violation in the school setting. The AG’s office declared in its Nov. 18 ruling that it has the authority to investigate violations of state or federal discrimination law under section 2-3902 of the Virginia Code. But what discrimination law was violated by Loudoun County?

It is a mystery what state or federal law is supposedly violated by colorblind, “facially-neutral,” selective admissions. The only discrimination statute cited by the AG’s office is the federal Title VI statute. In 2001, the U.S. Supreme Court ruled that the Title VI statute itself does not prohibit disparate impact — like exams that more minorities than whites flunk — but rather only “intentional discrimination.” (See Alexander v. Sandoval (2001)).

In its 2001 ruling, the Supreme Court noted there are regulations adopted under the Title VI statute that have been interpreted by civil-rights officials as banning disparate impact, even though the Title VI statute itself doesn’t. But the court called the idea that such regulations can ban validly “disparate impact” “strange,” and suggested they are likely invalid. (See Alexander v. Sandoval, 532 U.S. 275, 286 n.6 (2001)).

In any event, the Virginia attorney general’s office doesn’t place much weight on any such federal regulation. It mentions a Title VI regulation only in passing, along with the Title VI statute, and the federal and state constitutions. (See its Final Determination, at pages 34-35, citing 34 C.F.R. 100.3(b)(2) in footnote 28).

It’s puzzling that the attorney general’s office cites the Constitution in support of its ruling. Colorblind admissions tests don’t violate the Constitution’s ban on racial discrimination. The U.S. Supreme Court has ruled over and over again that that the Constitution does not ban racially disparate impact. For example, the Supreme Court ruled that a written personnel test that more blacks than whites flunked didn’t violate the ban on racial discrimination found in the Constitution. (See Washington v. Davis (1976)).

So logically, the only conceivable basis for the ruling against the Loudoun Schools, if there is any, is the Title VI regulation — a regulation of dubious validity insofar as it bans “disparate impact,” according to a footnote in a 2001 Supreme Court decision. (see Alexander v. Sandoval, 532 U.S. 275, 286 n.6 (2001)).

But even if that regulation is valid, the Virginia attorney general’s office made mistakes in finding a violation of it. That’s because it relied heavily on apples-to-oranges comparisons in finding “underrepresentation” and “disparate impact” in the first place — like comparing the racial makeup of people admitted to Loudoun’s selective schools with the racial makeup of the county’s entire student population. Even when a discrimination statute bans “disparate impact,” that only forbids certain kinds of “underrepresentation”: namely, when a minority group is unjustifiably underrepresented compared to the correct “reference pool.” The “reference pool” is supposed to take into account people’s interests and basic qualifications, not just their race. (See Wards Cove Packing Co. v. Atonio (1989)).

Many students are neither interested in nor qualified by any stretch of the imagination to study STEM at a selective academy. The purpose of “disparate impact” discrimination findings is to weed out “arbitrary and unnecessary barriers” to qualified members of minority groups, not require a racial quota — as the Virginia attorney general’s office is effectively encouraging.

Yet, the Virginia attorney general’s office faulted the Academies of Loudoun just for not being as black and brown as the school system as a whole. For example, it complained that “In Year Two, Black/African-American students represented 3.17% of the applications and 1.77% of enrolled students, despite constituting 18% of the LCPS student population.”

But that’s an apples-to-oranges comparison. As the federal appeals court in Richmond has noted, there is no legal presumption that all racial groups will apply to a selective program at the same rate or be qualified at the same rate. It ruled that a university’s selective admissions criteria did not have any racially “disparate impact” that would justify affirmative action for black people, even if blacks were less well represented in the university’s student body than in the state’s population of graduating high-school students. That’s because any finding of racial “underrepresentation” had to take into account student interests and basic qualifications. (See Podberesky v. Kirwan, 38 F.3d 147, 159-60 (4th Cir. 1994)).

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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