A liberal federal appeals court panel has issued a stay of a lower court ruling against an admission policy designed to reduce the number of Asians at an elite school, in order to increase the number of blacks and Hispanics. The panel voted along party lines to block a trial judge’s injunction against the admissions policy, until the appeals court can rule on the merits of the admissions policy, which a trial judge found violated the Constitution’s equal protection clause.
On Thursday, the Fourth Circuit Court of Appeals voted 2-to-1 to stay a trial court ruling against a new admissions policy at the Thomas Jefferson High School for Science and Technology, in Virginia’s liberal Fairfax County. The new admissions policy was not explicitly discriminatory. But it had a discriminatory motive. Senior trial Judge Claude Hilton ruled that it was unconstitutional because it was adopted for the purpose of promoting “racial balancing” and, in the process, discriminating against Asian Americans. (George Mason University law professor Ilya Somin approvingly discussed Judge Hilton’s decision and the basis for his ruling at this link.)
The divided Fourth Circuit panel effectively disregards this this discriminatory motivation in its March 31 ruling. The stay issued by the ruling means the new admissions policy will go into effect for this year’s admissions process. It also signals that the liberal-dominated Fourth Circuit Court of Appeals will probably uphold the policy when it decides the case on the merits in a few months. The liberal majority did not explain its ruling. But Biden-appointee Judge Toby Heytens did issue a concurring opinion, which explains his flawed reasoning. In it, Judge Heytens ignores the fact that Asians, just like blacks and Hispanics, are a minority group, and that an intent to harm any racial group (not just blacks) triggers strict scrutiny under the Constitution:
I… am skeptical of the district court’s conclusion that there is no genuine issue of material fact implicated by its conclusion that the Board adopted the current admissions policy for a constitutionally impermissible purpose…. The centerpiece of the district court’s analysis on this point is its statement that “the Board’s policy was designed to increase Black and Hispanic enrollment, which would, by necessity, decrease the representation of Asian-Americans at TJ.”…. (emphasis added).
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That approach seems flatly inconsistent with the Supreme Court’s decision in Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979). Feeney involved a constitutional challenge to a Massachusetts statute mandating a categorical employment preference for qualified veterans over qualified non-veterans. 442 U.S. at 259. Even though “over 98% of the veterans in Massachusetts were male,” id. at 270—and even though no one claimed that those who crafted and decided to maintain the law were unaware of that fact—the Supreme Court declined to apply heightened scrutiny. In language directly relevant to this case, the Court specifically held that “awareness of consequences” is not enough to show discriminatory intent and that a plaintiff challenging a facially neutral policy must show that a decisionmaker acted “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group….”
Nor does the fact that the current policy may have been adopted, at least in part, with the expectation that it would “increase Black and Hispanic enrollment” change this analysis…. Under Feeney, the question is whether the decisionmaker acted “at
least in part because of [a race neutral policy’s] adverse effects upon an identifiable group,” 442 U.S. at 279…, and the Coalition has never claimed that the challenged policy was motivated by or has any sort of adverse effect on Black or Hispanic applicants.
As Professor Somin notes,
The most significant flaw in this argument is that Judge Heytens ignores extensive evidence that Fairfax school officials were in fact motivated by a desire to reduce the number of Asian-American students admitted. That reduction was not merely an incidental side effect of the new policy….[E]vidence [shows] that some decision-makers were also motivated by bias against Asian-American students, such as claims that having too many of them would damage TJ’s “culture,” negative stereotypes about Asian-American parents and students, and state legislator Mark Keam’s fulminations about the “unethical ways” Asian-American parents “push their kids into [TJ],” when those parents are “not even going to stay in America,” but instead are “using [TJ] to get into Ivy League schools and then go back to their home country.” Keam’s sentiments are relevant because, as Judge Hilton found, Fairfax County school officials were influenced in part by pressure from the state government.
Longstanding Supreme Court precedent holds that such 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.
In addition, there is a big difference between the Feeney case and the TJ litigation. In Feeney, the Court not only concluded that the state wasn’t motivated by any desire to harm women, but also reasoned that the policy in question (job preferences for veterans) was not motivated by a desire to help men, as such . By contrast, extensive evidence shows that Fairfax County officials were motivated by a desire to promote racial balancing at TJ by increasing the percentage of students from some racial groups, particularly African-Americans and Hispanics.
Even if you set aside specific anti-Asian motives, it is inevitably the case that discriminating in favor of one racial group disadvantages other groups, and does so deliberately. If a public school adopted a facially neutral policy deliberately intended to increase the number of white students, thereby reducing the number of blacks, Judge Heytens would surely have to agree that it is presumptively unconstitutional – even if the evidence showed only that officials wanted to help whites and did not display any special hostility towards blacks.
Judge Allison Jones Rushing, a Trump appointee, addressed these realities in her dissent:
When motivated by discrimination, facially neutral policies like TJ’s admissions plan “are just as abhorrent, and just as unconstitutional, as [policies] that expressly discriminate on the basis of race.” N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 220 (4th Cir. 2016); cf. Yick Wo v. Hopkins, 118 U.S. 356, 373– 374 (1886) (prohibiting discriminatory enforcement of facially neutral laws). A “[c]hallenger need not show that discriminatory purpose was the sole or even a primary motive” behind the policy, “just that it was a motivating factor.”McCrory, 831 F.3d at 220….
Based on the undisputed evidence before it, the district court found that the Board pursued the policy change “at least in part ‘because of,’ and not merely ‘in spite of,’ its adverse effects” upon Asian Americans.Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). Specifically, the court determined that the Board acted with an impermissible racial purpose when it sought to decrease enrollment of “overrepresented” Asian-American students at TJ to better “reflect the racial composition” of the surrounding area. As the court explained, Board member discussions were permeated with racial balancing, as were its stated aims and its use of racial data to model proposed outcomes.
The Supreme Court has repeatedly emphasized that racial balancing for its own sake is unconstitutional. See Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 311 (2013); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 729–730 (2007)…. Racial balancing is no less pernicious if, instead of using a facial quota, the government uses a facially neutral proxy motivated by discriminatory intent. And while the Supreme Court has endorsed certain race-based motivations—specifically to remedy past intentional discrimination or, in higher education, to obtain the benefits of diversity—neither motivation is at issue here.