By Arjun Singh
The Supreme Court on Tuesday declined to grant a writ of certiorari to review a case involving a racial admissions program at one of the most highly-ranked high schools in the country.
The Thomas Jefferson High School for Science and Technology is a charter school located in Alexandria, Virginia, outside of Washington, D.C., and was ranked in 2021 and 2022 as the best public high school in the United States by the U.S. News and World Report, with a current national rank of 1 for college readiness and graduation rates. The school in 2021 was sued by a group of parents and students for implementing a new admissions policy that allegedly discriminated against Asian applicants, with the Court declining to alter a federal appellate court decision that affirmed the policy on Tuesday. (RELATED: Federal Court Upholds Race-Based Admissions Policy At Nation’s Top High School)
The decision of the court to deny certiorari, which requires the support of at least four justices, was opposed by Justices Samuel Alito and Clarence Thomas. Alito wrote a dissent from the court’s denial of certiorari that criticized the majority for ignoring a case of affirmative action, which the Court previously ruled unconstitutional in Students for Fair Admissions, Inc. v. Harvard in 2023.
“The Court of Appeals’ decision in this case is based on a patently incorrect and dangerous understanding of what a plaintiff must show to prove intentional race discrimination,” wrote Alito in his dissent, which Thomas joined. “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.”
The case stems from the school’s decision in 2020 to change its admissions policy by abolishing a standardized examination and, instead, assess applicants based on a “holistic” evaluation that included an assessment of the applicant’s middle school and a points system for various factors, which included an applicant’s prior experiences. Before the policy was enacted, 73% of students at the school were of Asian ethnicities, a figure that fell to 54% thereafter, according to the petition for certiorari.
“The issue, in this case, is simple — did the Board’s overhaul violate the Equal Protection Clause?” wrote Coalition for TJ in its petition, referring to the U.S. Constitution’s 14th Amendment that prohibits states from denying to persons “equal protection of the law.” They argued that the policy was “applied and administered by a public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances,” quoting previous Court precedents on the subject.
The U.S. Court of Appeals for the Fourth Circuit, on May 23, 2023, ruled in favor of the school that the admissions policy was lawful. “[T]he challenged admissions policy does not disparately impact Asian American students [and] the Coalition cannot establish that the Board adopted its race-neutral policy with any discriminatory intent,” wrote Judge Robert Bruce King, an appointee of President Bill Clinton, for a divided panel, whose decision in the case will remain the law.
The case had attracted many amici curiae, including 16 state governments, who filed scores of briefs with the Court and the Fourth Circuit in favor and against the policy.
In 2020, the school’s principal, Ann Bonitatibus, publicly announced a plan to “enroll 180 black and 460 Hispanic students, filling nearly 22 classrooms,” according to the petition, which preceded changes to the admissions process. The announcement followed the death of George Floyd in Minneapolis on May 25, 2020, which provoked widespread protests across the country and calls for more racial diversity in public institutions.
The school offers advanced courses in science and mathematics that are regarded to be college-level and is among the few high schools in the country with a fully functioning supercomputer. Among its alumni are Fallout video game designer Chris Avellone, Robinhood Markets co-founder Vladimir Tenev and Republican Gov. Chris Sununu of New Hampshire, with several world leaders also having visited the campus.
“We have long believed that the new admissions process is both constitutional and in the best interest of all of our students. It guarantees that all qualified students from all neighborhoods in Fairfax County have a fair shot at attending this exceptional high school,” said Karl Frisch, the chairman of the Fairfax County School Board, in a statement to the Daily Caller News Foundation. “In the last group of admission offers for the freshman class that entered in the fall of 2023, economically disadvantaged students comprised 11.64% of the class. The gender breakdown was 43.4% female and 57.6% male. Asian-American students represented 61.6% of the offers, with white students receiving 19% and Black and Hispanic students receiving 6.7% and 6.0%, respectively.”
Law Professor Ilya Somin criticized the ruling:
As the district court found, the record in this case is full of statements indicating that race was the primary motivation for for the change in admissions policies, and that the School Board specifically sought to reduce the number of Asian students in order to increase the percentage of blacks and Hispanics, and also to—as the TJ principal put it—ensure the TJ student body better “reflect[s] the racial composition in [the Fairfax County Public Schools].'” Other officials claimed that having too many Asian students was in itself harmful because it would damage TJ’s “culture.” State legislator Mark Keam fulminated 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.”
The Fourth Circuit could have limited themselves to holding (wrongly, in my view) that the School Board would have adopted the new policy even in spite of illicit racial motivation; this is the relevant legal standard under longstanding Supreme Court precedent. But they went beyon that and made a much worse decision, holding that evidence of racist motivation is simply irrelevant so long as the group discriminated against is still represented at a higher rate than its percentage of the applicant pool. That’s a dangerous precedent that can easily be abused in many circumstances, by both right and left-wing policy makers.
As I have previously noted, anti-Asian policies at TJ and many other elite educational institutions are reminiscent of efforts to reduce the number of Jewish students at many elite colleges in the early 20th century. Those policies, too, were often facially neutral, and in many cases the number of Jewish students admitted was still higher than the percentage of Jews in the applicant pool or in the general population. Yet, today, few doubt these policies qualify as anti-Semitic discrimination. The same reasoning should apply to the TJ case and others like it.
“The Supreme Court missed an important opportunity to end race-based discrimination in K-12 admissions,” said Pacific Legal Foundation senior attorney Joshua Thompson, which represented the challengers. “Discrimination against students based on their race is not only ethically wrong but also a clear violation of the Constitution’s guarantee of equal protection. Schools should evaluate students as individuals, not as groups based on racial identity. That kind of group stereotyping is morally wrong and undermines the American promise of opportunity for all.”
Coalition for TJ v. Fairfax County School Board, No. 23-170 (601 U.S.___, Feb. 20, 2024) (cert. denied) by Daily Caller News Foundation on Scribd
