The Volokh Conspiracy
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Lawsuit Challenging Racial Balancing and anti-Asian Discrimination at Prominent Selective Public High School Will Proceed
A federal court denied the Fairfax County School Board's motion to dismiss the case.
Earlier today, federal district judge Claude Hilton denied the Fairfax County School Board's motion to dismiss a race discrimination lawsuit against the new admissions policy at the Thomas Jefferson High School for Science and Technology (colloquially known as "TJ"), an elite selective public high school:
The Fairfax County School Board, seeking to increase diversity at the school, drastically overhauled the admissions process at the school, scrapping a standardized test that had been the linchpin of the process. The new system now allocates slots at the highly competitive school in a system that distributes the vast majority of slots to the top 1.5 percent of students at each of the county's middle schools….
U.S. District Judge Claude Hilton expressed skepticism about the school system's assertions that its new admissions policy is race neutral.
"Everybody knows the policy is not race neutral, and that it's designed to affect the racial composition of the school," he said. "You can say all sorts of beautiful things while you're doing others."
While Hilton allowed the lawsuit to move forward to the next stage, he denied a request for an injunction that would have barred the school system from using the new policy for the incoming class of freshmen. He said it would be too disruptive to order a change at such a late date — Raphael said the school system is nearly completed with its review of applications for the upcoming fall semester, and that students will find out in June whether they have been admitted under the new process.
Judge Hilton is absolutely right to emphasize that "[e]verybody knows the policy is not race neutral, and that it's designed to affect the racial composition of the school." School board officials have themselves publicly stated that their goal is to create a student body where the distribution of racial and ethnic groups is "proportional to the population numbers" of Fairfax County.
While the new policy is neutral on its face, the plaintiffs (a group of predominantly Asian-American parents of students applying to the school) cite extensive evidence indicating that the change in policy was motivated by an effort to achieve racial balancing generally and a specific intent to reduce the proportion of Asian-American students. Asian-Americans make up about 19% of the County's population, but 70% of the TJ student body. By capping the number of students who are admitted from any given middle school, the School Board's new policy will greatly reduce the percentage of admittees from middle schools with large numbers of Asian-American students, while increasing that from schools with relatively few.
It is also worth noting that, while the school board cites the relative paucity of African-American and Hispanic students, the vast majority of the beneficiaries of the new policy are likely to be white applicants. The issue is not just that the new policy will have a disproportionate negative impact on Asian-American students, but that achieving that result is a big part of the motivation behind the shift.
The lawsuit against TJ will now continue. It is likely there will be a trial, as there are enough disputed facts that the issue probably cannot be settled without one.
This case could potentially set an important precedent, as similar policies seeking to reduce the number of Asian-American students have been adopted at a number of other selective public schools and universities. I wrote about the the legal, moral, and policy issues at stake in greater detail here and here. Among other things, I pointed out that today's efforts to restrict the percentage of Asians at elite education institutions have many parallels with earlier attempts to restrict the percentage of Jews, during the early to mid-twentieth centuries:
[W]hile comparisons to Jim Crow are overstated, there is a closer historical parallel to early-twentieth century policies intended to limit the number of Jewish students at elite educational institutions. As in the case of Asian-Americans today, education administrators back then argued that having too many Jews would undermine desirable diversity, and damage the school's "culture." Much like Asian students today, Jewish students in that era were stereotyped as overly focused on grades and test scores, and not interested enough in sports and social activities.
And, as with the TJ policy of using middle school caps and "holistic" policies to keep down the number of Asian students, administrators at Ivy League universities used geographic preferences and "character" evaluations, as a seemingly neutral proxy for keeping down the number of Jews….
Today, almost everyone regards these anti-Jewish policies as a shameful episode in the history of American education. But today's very similar efforts to reduce the number of Asian-American students suggests we haven't learned the lessons of history as well as we should have.
NOTE: My wife, Alison Somin, works for the Pacific Legal Foundation, the public interest law firm representing the plaintiffs in the TJ case. She is also part of the litigation team working on the case. As links in my previous post about this case demonstrate, I have written about these sorts of issues since long before Alison accepted a position at PLF last year, and my views are much the same as they were before she did so.
UPDATE: For those keeping track, I have also long argued for strong judicial scrutiny of cases where the right-wing government policies engages in pretextual discrimination against racial, ethnic, and religious minorities, as in the case of Donald Trump's travel ban targeting residents of Muslim-majority nations. The TJ case actually reminds me of the travel ban case, inasmuch as, in both cases, government officials have been remarkably open in stating their discriminatory motivations. I have also forcefully criticized conservative efforts to severely restrict immigration from China.