SCOTUS will not hear PLF case on discrimination in K-12. What happens now?
Earlier this week, the U.S. Supreme Court announced it will not hear our Thomas Jefferson High School case, a fight to determine whether public school students should be treated as individuals—on merit—or as members of racial groups.
This is disappointing news for Pacific Legal Foundation and our clients, the Coalition for TJ: a group of parents, staff, alumni, and community members who are frustrated by admissions changes at Thomas Jefferson High School for Science and Technology in Fairfax County, Virginia.
The Coalition’s cofounder, Asra Nomani, expressed her disappointment with the Court but reaffirmed that her organization stands resolute in their cause.
“Since 2020, we’ve poured our hearts and souls into this fight,” Asra wrote, “and no Supreme Court decision will stop us from continuing our wider battle for equality and merit.”
Virginia Governor Glenn Youngkin also lamented the Court’s decision:
I am disappointed that the Supreme Court declined to review Thomas Jefferson High School for Science and Technology’s admissions policy that penalizes high-performing students in the name of equity. This nation was built on the idea of building a better future through hard work and determination and we should recommit to those ideals. Admissions should be based on merit, we should embrace excellence and reward high achieving students.
The school, known locally as TJ, once had a competitive, colorblind admissions process. But in 2020, the Fairfax County School Board overhauled TJ’s admissions process to change the racial composition of the school “towards greater equity.” It eliminated the standardized tests and introduced new “Experience Factors” into the scoring of applicants.
After the policy changes, the Asian American share of the student body dropped steeply.
Many of the parents who cofounded the Coalition for TJ are Asian American immigrants. They sued the school board not just to protect their own children’s futures, but to protect the future of the American Dream—the reason they immigrated here in the first place.
“I came to this country because it was a beacon of hope and a land of opportunity for those willing to work hard and prove their worth,” says Suparna Dutta, a Coalition cofounder and Fairfax County mom.
For three years, Pacific Legal Foundation has proudly represented the Coalition. We won this case at district court: Judge Claude Hilton agreed with us that the school board was illegally treating students differently based on race. But the Fourth Circuit reversed his decision and allowed the school board’s race-based admissions scheme to continue.
We hoped that the Supreme Court would grant our petition to hear Coalition for TJ and reverse the Fourth Circuit’s decision. Sadly, the Coalition for TJ will not get their day in front of the Supreme Court. But the TJ case did get support from two Justices.
Justices Samuel Alito and Clarence Thomas dissented from the denial. In the dissent, Justice Alito wrote that the Fourth Circuit’s holding was “indefensible.” He also likened the Fourth Circuit’s reasoning to a “virus that may spread if not promptly eliminated.”
While the Court’s refusal to hear Coalition for TJ is a setback, Pacific Legal Foundation’s fight for the future of American education, meritocracy, and equality under the law is far from over. We continue to challenge discrimination by proxy in K-12 education.
Justice Alito’s dissent points to one of PLF’s other cases: Boston Parent Coalition for Academic Excellence v. School Committee, in which parents are fighting discrimination at the city’s elite public schools that, like TJ, have moved away from merit-based admissions in favor of policies that focus on race.
Now, instead of colorblind, merit-based qualifications, these prestigious Boston schools have implemented a ZIP Code quota, ensuring students from each of the city’s ZIP Codes are represented. The school board was clear on their motives. As one member of the policy’s working group stated, the endgame was “rectifying historic racial inequities afflicting exam school admissions for generations.”
As at TJ, the new policies had an immediate impact and Asian enrollment fell.
Government schools cannot use racial proxies like ZIP Codes in an attempt to racially engineer the student body. Boston school administrators should not get away with this kind of blatant discrimination in public schools, and students who study and work hard should not be denied entry based on their race. Nor should they in New York or Montgomery County, Maryland, two other battlegrounds on this issue. As Chief Justice John Roberts wrote in his opinion striking down the use of race in admissions at Harvard and the University of North Carolina, “what cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows.”
Our battle against racial discrimination in K-12 public education will not be fought in courts alone. PLF’s legal policy team has created model legislation, “Prohibiting Proxy Discrimination,” that makes it difficult for public education institutions to discriminate based on race, sex, color, ethnicity, ancestry, and national origin.
Justice Alito closed his dissent from the denial by saying, “The Court’s willingness to swallow the aberrant decision below is hard to understand.” We agree—but Justice Alito’s strong dissent, public disappointment in the cert denial, and our continued efforts in cases across the country give us hope for the future.
