PLF heads back to SCOTUS to challenge racial discrimination in public school admissions
Pacific Legal Foundation is heading back to the Supreme Court next year with our case, The Association for Education Fairness (AFEF) v. Montgomery County Public Schools.
Montgomery County, Maryland, is one of the largest school districts in the country. Four decades ago, MCPS launched a magnet program designed for gifted middle school students, with a special focus on STEM, later adding humanities-driven programs as well. Today, the school district has four middle school programs serving students across the county—two dedicated to STEM, and two to humanities.
Earning a seat at one of these academically rigorous programs provides exceptional opportunities for the county’s brightest students—opportunities that may not otherwise be available without paying the steep price of private school tuition.
Naturally, spots at these four schools are limited and highly competitive. Admission has historically been race-neutral and based on a student’s grades, teacher recommendations, and their score on the Cognitive Abilities Test (CogAT).
But all that changed with the 2017-2018 admissions cycle.
Changing the rules
By the 2013-2014 school year, the Asian American share of the county’s population had increased, and these students made up nearly half of the enrollment in MCPS’ four magnet middle school programs. This prompted MCPS to hire Metis, a national consulting firm, to study the district’s academic programs and recommend ways to “fix” what was perceived as a racial imbalance among the student body.
In reality, the district sought a way to reduce the number of Asian American students admitted to the programs to make room for students from other “underrepresented” racial groups—like black and Hispanic students.
The district overhauled its admissions process through two significant changes. First, the district moved toward peer grouping, which made it harder for students to get into a magnet program if their zoned middle school would have a large number of high-achieving students.
The second change, introduced later, was local norming. Instead of using a common admissions-test benchmark where individuals were assessed on their academic abilities, local norming judged a student’s test score against a local comparison group—rather than against scores across the district as a whole. This meant that students attending schools with higher levels of poverty could qualify with lower scores than students from schools with lower poverty rates. Asian American students in Montgomery County are clustered in the latter band of schools.
These changes ignored the needs and qualifications of individual students. Attending schools with other high-performing classmates does not mean a student has access to a specialized curriculum that is suited to their needs and abilities. Together, these changes shifted admissions away from individual merit and toward judgments based on a student’s classmates and school.
The changes also proved to disproportionately affect Asian American students who were largely concentrated in high-performing, lower poverty, elementary schools—the schools most disadvantaged by the new policy.
The result: At Takoma Park’s STEM program, Asian American students’ share of admissions invitations fell from 45.6% in the three years before the field test to 31.5% during the three field-test years.
To many concerned parents, the decrease in Asian American enrollment seemed to be by design and not by accident. Comments made by a Board member seemed to confirm their worries, when he warned:
If we expand blindly we are going to end up in the same place ten years from now, fifteen years from now, or whatever, because privilege is not going to go away but our ability to create those controls is what is going to help us to define what we want those programs to look like.
In 2020, the Association for Education Fairness (AFEF), a group comprised of mostly Asian American parents, sued the school district, alleging that the changes made to the admissions policy intentionally discriminated against Asian American students.
But after the lawsuit was filed, the district changed course once again.
A new lottery, the same unequal standards
During the COVID-19 pandemic, MCPS developed a lottery system, which continued to use local norming to determine eligibility. However, while academic performance still determined who could enter the lottery, getting an actual seat at one of the magnet schools was now determined by chance.
Under the lottery system, the CogAT was eliminated in favor of the Measures of Academic Progress (MAP) test. Instead of assessing how a student reasons through a series of verbal, quantitative, and nonverbal problems, MAP assesses what a student currently knows and can do in subjects like math and reading.
The new lottery system did little to calm AFEF’s concerns. Local norming continued to impose different academic thresholds for entering the lottery: Students needed a locally normed score at or above the 85th percentile. But because students were compared within different school groups, that threshold didn’t represent a uniform academic standard. The same score could get one child into the lottery while leaving another out entirely.
When the scores were compared using the same districtwide benchmark, the differences were stark. In schools with the lowest levels of poverty, students needed to score in the 93rd percentile to qualify for the STEM lottery whereas students in schools with high poverty levels only needed to score in the 60th percentile.
In 2021, AFEF amended its complaint to challenge the lottery as a continuation of the discrimination alleged in its initial suit.
The district court dismissed the case in 2022. The group then appealed to the Fourth Circuit, which affirmed because AFEF hadn’t alleged that Asian American students received a smaller share of admissions offers than their share of the applicant pool. However, that ruling rested on a statistical requirement, not a finding that MCPS lacked discriminatory intent.
With the help of Pacific Legal Foundation, AFEF asked the Supreme Court to hear its case.
This week, the Court agreed to hear the case, giving the parents and students of AFEF another day in court. The question now before the Supreme Court is whether parents must demonstrate this kind of statistical disparity to challenge an admissions policy they allege was intentionally discriminatory.
A broader fight for equal treatment
Montgomery County, Maryland, is not the only school district to move away from merit-based, race-blind policies in favor of equity-based admissions.
For years, Pacific Legal Foundation has helped parents and students challenge admissions policies that keep hardworking, deserving students out of public magnet school programs because of their race.
In 2024, PLF represented the Coalition for TJ—a group of concerned parents, students, and community members that challenged changes to the admissions policy at Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia. Like MCPS, Fairfax County shifted the public Governor’s School from merit-based admissions to a “holistic” approach that resulted in fewer Asian American students being admitted.
Unfortunately, the Court declined to hear Coalition for TJ’s case.
While it is rare for justices to write dissents from the denials of certiorari, when Coalition for TJ was denied, Justices Clarence Thomas and Samuel Alito expressed their strong objections. Justice Alito wrote that the Fourth Circuit’s prior ruling against the Coalition for TJ “works a grave injustice on diligent young people who yearn to make a better future for themselves, their families, and our society.”
While the legal question before the Court is different this time, both cases raise concerns about whether school districts can use race-neutral admissions policies to intentionally discriminate against students based on race.
The Constitution’s Equal Protection Clause protects individuals from being judged by their race or skin color. MCPS’ public magnet schools cannot deny students admission on that basis, no matter how they may try to spin it.
A child’s chance to earn a seat should depend on their own qualifications—not how many students of the same race have already earned one. Pacific Legal Foundation is proud to continue our fight to ensure that every person—no matter their age—is treated equally under the law.
