The Volokh Conspiracy
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Yesterday, in Coalition for TJ v. Fairfax County School Board, a federal district court ruled that a new admissions policy at the Thomas Jefferson High School for Science and Technology, in Fairfax, Virginia is unconstitutional, because it discriminates against Asian-American applicants. Thomas Jefferson (known as "TJ") is one of the nation's most prestigious selective public schools. While the new policy does not explicitly discriminate on the basis of race, federal district court Judge Claude Hilton found that the evidence shows it was motivated by a desire on the part of Fairfax County school officials to reduce the percentage of Asian-American students in order to make the student body more demographically representative of the county population.
As I have explained in previous writings about this case (see here, here, and here), the issue arises from longstanding Supreme Court precedent holding that a facially neutral policy can qualify as unconstitutional racial discrimination if there is evidence that favoring some racial groups at the expense of others was part of the government's motive, and the defendants cannot prove they would have enacted the policy even in the absence of those discriminatory motivations. That is exactly what happened here. The Washington Post has a helpful summary of the ruling:
A federal judge ruled Friday that a new admissions system for Thomas Jefferson High School for Science and Technology, a prestigious magnet program in Fairfax, discriminates against Asian American applicants and must end
U.S. District Judge Claude Hilton concluded that an effort to boost African American and Latino representation at TJ, as the school is known, constitutes an illegal act of "racial balancing…"
Hilton wrote that "emails and text messages between Board members and high-ranking FCPS officials leave no material dispute that, at least in part, the purpose of the Board's admissions overhaul was to change the racial makeup to TJ to the detriment of Asian-Americans…."
In 2021, the first year the admissions changes took effect, officials at TJ enrolled the most diverse class in recent memory. The TJ Class of 2025 includes far more Black, Hispanic and low-income students than any class in recent memory. But Asian American representation dropped from roughly 70 percent to around 50 percent of the class.
The changes were controversial from the start; they inspired two swift lawsuits…..
[Judge Hilton] wrote that throughout the revision process, Fairfax school board members and the superintendent made clear that their goal was "to have TJ reflect the demographics of the surrounding area, described primarily in racial terms." Hilton wrote that this aim amounts to "racial balancing for its own sake," and as such is "patently unconstitutional."
He pointed to text messages and emails exchanged between school board members and some of the highest-ranking school officials in the Fairfax district. These communications, he wrote, prove that the school system's goal was always to decrease the percentage of Asian American students enrolled at TJ — to increase the number of Black and Hispanic students.
"The discussion of TJ admissions was infected with talk of racial balancing from its inception," Hilton wrote.
As the court explains, the new admissions policy ensured that most admissions slots were allocated by a system that limited the number of students admitted from any given middle school, thereby reducing the number of people who could be admitted from schools with relatively large Asian-American populations. Judge Hilton also went over the extensive evidence indicating that "racial balancing" was the most significant motive underlying the new policy.
He does not, however, mention evidence that some decision-makers were also motivated by bias against Asian-American students, such as claims that having too many of them would damage TJ's "culture," negative stereotypes about Asian-American parents and students, and state legislator Mark Keam's fulminations about the "unethical ways" Asian-American parents "push their kids into [TJ]," when those parents are "not even going to stay in America," but instead are "using [TJ] to get into Ivy League schools and then go back to their home country." Keam's sentiments are relevant because, as Judge Hilton found, Fairfax County school officials were influenced in part by pressure from the state government.
Since the Coalition for TJ case began, the Supreme Court decided to hear two cases challenging racial preferences in higher education. One of them - a lawsuit against Harvard University - involves discrimination against Asian-Americans, much like the TJ case does. I wrote about these cases in articles published by the Boston Globe and NBC.
But the TJ case addresses a number of issues that are distinct from those in the new Supreme Court cases. One is that the admissions policy in the TJ litigation doesn't explicitly discriminate on the basis of race, but is a facially neutral program motivated by racial considerations. While such pretextual discrimination cases have a long history, this would be the first ruling of this kind against a policy intended to promote affirmative action or racial balancing. Another distinction is that this case involves K-12 education, rather than university admissions.
If, as many observers expect, the Supreme Court rules against Harvard's policy, university and public school officials might seek out less explicit ways to reduce the number of Asian-American students in order to promote what they regard as the proper representation of other racial and ethnic groups. The TJ case could set an important precedent about how courts should deal with such policies.
At least for the moment, TJ's new admissions policy has been invalidated. Judge Hilton's ruling is a decision on summary judgment, meaning that the facts are so clearly in the plaintiffs' favor, that no trial was necessary.
But the Fairfax County School Board is likely to appeal the decision to the US Court of Appeals for the Fourth Circuit. The case could even eventually end up in the Supreme Court.
NOTE: My wife, Alison Somin is one of the Pacific Legal Foundation public interest lawyers representing the plaintiffs in the TJ case. As links in one of my previous posts about this case demonstrate, I have been writing about these sorts of issues since long before Alison began working at PLF, and my views are much the same as they were before she did so.