Supreme Court should wipe Thomas Jefferson High School ruling ‘off the books,’ Justice Alito says in dissent

We received heartbreaking news this week when the Supreme Court denied our petition for a writ of certiorari in Coalition for TJ v. Fairfax County School Board. The case challenged the school board’s overhaul of admissions at Thomas Jefferson High School of Science and Technology—one of the best public high schools in America—undertaken to limit the number of Asian American students who could attend. To achieve its goal, the board replaced the famously rigorous TJ admissions process with a series of proxies designed to produce the racial result the board wanted. And it worked. The first year saw Asian American representation in TJ’s entering class drop by more than a quarter. 

Our client was a grassroots association of parents courageous enough to take one of the nation’s largest school districts to federal court. And they won. Judge Claude Hilton of the United States District Court for the Eastern District of Virginia held that the board had intentionally discriminated against Asian American applicants to TJ in violation of their constitutional equal protection rights. “The discussion of TJ admissions changes,” he wrote, was “infected with talk of racial balancing from its inception.” He issued an order stopping the board from implementing the new criteria.  

But the Coalition for TJ’s victory was short-lived. The Fourth Circuit stayed the injunction, then the three-judge panel reversed Judge Hilton over the strong dissent of Judge Allison Rushing. The panel majority held that the Coalition could not show discriminatory intent, because Asian Americans still received 54% of the seats at TJ, a higher proportion than the group’s share of the applicant pool. Judge Rushing correctly excoriated that reasoning in dissent, writing that such a rule would doom a case even where “a new law cut a racial group’s success rate from 90% to 30% and the legislature was open about its discriminatory purpose, as long as no other racial group succeeded at a higher rate.” 

On the heels of the Supreme Court’s decision in Students for Fair Admissions v. Harvard, we were very optimistic about the prospects for the Supreme Court hearing the Coalition’s case. We assembled a strong group of amici, including almost two dozen states, to support our petition. But in the end, not enough Justices voted to take the case.  

Justice Samuel Alito wrote a powerful dissent, joined by Justice Clarence Thomas. He argued the Fourth Circuit’s ruling “cries out for correction.” It “effectively licenses official actors to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups,” he wrote. “That is indefensible.” 

Justice Alito posed a hypothetical: What if, in a majority-white school district, 10 of 12 players on a high school basketball team were black, and the principal emailed the coach to demand five of the black players be replaced with white players? The coach could find a contrived reason, like reserving a set number of spots on the team for each middle school that feeds into the high school. Justice Alito wrote: 

According to the reasoning of the Fourth Circuit majority, this action would not violate equal protection because the percentage of black players left on the team (approximately 42 percent) would exceed the percentage of black students in the school. I cannot imagine this Court’s sustaining such discrimination, but in principle there is no difference between that imaginary case and one now before us. 

The Fourth Circuit’s reasoning is “flagrantly wrong and should not be allowed to stand,” he continued. It “works a grave injustice on diligent young people who yearn to make a better future for themselves, their families, and our society” and “is a virus that may spread if not promptly eliminated.”  

The Supreme Court “should wipe the decision off the books,” Justice Alito concluded, “and because the Court refuses to do so, I must respectfully dissent.” 

Inspired by that dissent, PLF does not plan to give up the fight.  

Justice Alito cited our Boston Parent Coalition case—a challenge to a ZIP Code quota designed to racially balance Boston’s elite exam schools—in his dissent as an example of the “virus” of the TJ opinion spreading elsewhere. And that case demonstrates the danger of the TJ rule, as our client lost solely based on disparate impact, even though three of the seven school committee members who voted for the ZIP Code quota were later forced to resign in disgrace for what the district court deemed “racist” incidents. We plan to ask the Court to hear that case in the coming months. In the meantime, K-12 cases in Montgomery County, Maryland, and New York City continue to wind their way through the courts.  

It often takes more than one great case to change the law. PLF is committed to see the fight through to the end, because as the Supreme Court said last term in SFFA, “[e]liminating racial discrimination means eliminating all of it.”