A federal district court recently struck down the Fairfax County School Board’s (FCSB) revamped admissions scheme at the highly selective magnet school, Thomas Jefferson High School, in Alexandria, Va., as racially discriminatory against Asian American students. Although a 2-1 Fourth Circuit panel stayed the Coalition for TJ v. FCSB judgment and the Supreme Court declined to grant an emergency application vacating the stay, leaving the revamped admissions scheme in place for at least another year, its long-term survival is far from certain.
In the Fourth Circuit, Judge Allison Jones Rushing dissented vigorously from the stay. Supreme Court Justices Clarence Thomas, Samuel Alito and Neil Gorsuch also voted to grant the emergency motion. Given the interest from at least three justices, this likely will not be the Coalition for TJ’s last trip to the Supreme Court. Media and lawyers who are following the TJ case have thus questioned what its implications are for the Supreme Court cases challenging race-preferential admissions at Harvard University and the University of North Carolina (UNC).
Coalition for TJ v. FCSB and Students for Fair Admissions Inc. (SFFA) v. Harvard/SFFA v. UNC differ in that Harvard and UNC acknowledged using race in undergraduate admissions, whereas the Fairfax County School Board claims its admissions process is race-neutral. Plaintiff Coalition for TJ counters that the board’s quota system guaranteeing seats to each Fairfax County Middle School lets the board engineer a particular racial result without acknowledging it was doing so.
In general, governmental authorities cannot discriminate on the basis of race under the Constitution. Similarly, under Title VI of the Civil Rights Act of 1964, recipients of federal funds are banned from engaging in racial discrimination. Previous Supreme Court decisions nonetheless have recognized some limited exceptions to these prohibitions. Notably, in the higher education context, Grutter v. Bollinger held that universities can use race in admissions if that use furthers a compelling interest in the educational benefits of student body diversity and is narrowly tailored to achieve that interest.
Grutter’s diversity exception is an uneasy fit with the rest of the court’s anti-discrimination jurisprudence. As the SFFA petition put it, Grutter “departs from the Constitution’s original meaning, contradicts other precedents, has eroded over time, and has no true defenders.” Therefore, many expert commentators think the court is likely to overrule Grutter in the consolidated SFFA cases.
What happens then? Some observers expect universities to take measures akin to what the Fairfax County School Board did — restructure their admissions processes to achieve a racial result while not acknowledging they’re engaging in racial discrimination.
After California prohibited race preferences in public education in 1996, its state universities briefly made an earnest attempt to comply with the new law. But shortly afterward, they found ways to circumvent it, such as reducing the importance of test scores in admissions or creating magnet programs believed to appeal mostly to racial and ethnic minority students. While these measures were facially race neutral, it seemed that they were put into place to achieve a racial result. Not putting too fine a point on it, UCLA sociology professor Tim Groseclose wrote a book titled “Cheating,” describing how the admissions office at his university avoided following the law.
The Constitution’s promise of non-discrimination would ring hollow if the government could evade it by using proxies for race to achieve racial results. The state governments of the Jim Crow South were infamous for trying to get around the Constitution’s requirement of equal protection under law by using proxies for race such as grandfather clauses or literacy tests restricting who was able to vote.
Fortunately, the Supreme Court has interpreted the Equal Protection Clause not to allow such governmental evasions. In Arlington Heights v. Metro Housing Development Corp., the court identified four factors that suggest the presence of concealed discrimination: (1) the impact of the official action; (2) the historical background of the decision; (3) the specific sequence of events leading up to the challenged decision; and (4) the legislative or administrative history of the decision.
Not all four factors need to indicate concealed discrimination in a particular case to show that discrimination has occurred; the framework is flexible. In Coalition for TJ, however, the district court held that all four factors indicated anti-Asian discrimination. Even in the opinion granting the board’s stay motion, Judge Toby Heytens agreed that mere facial race neutrality wasn’t sufficient for the board to dodge an equal protection challenge. Rather, the disagreement between him and Judge Rushing was about how to frame the test and how to apply it to the record evidence.
At a hearing on a motion to dismiss in the TJ case, Judge Claude Hilton said, “Everybody knows the policy is not race neutral and that it’s designed to affect the racial composition of the school.” He added, “You can say all sorts of beautiful things while you’re doing others.”
The Constitution and federal civil rights law enshrine the principle that individuals should be treated as individuals and not as members of racial groups. This promise will not be realized if courts uphold policies about which governments say “beautiful things” while really doing others. In future cases, courts should follow the Coalition for TJ district court’s approach to fulfill federal law’s promise of equal opportunity.
This op-ed was originally published by The Hill on May 16, 2022.