The Volokh Conspiracy
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Fourth Circuit Ruling in Anti-Asian Discrimination Case Sets a Dangerous Precedent
The decision sets a dangerous precedent licensing the use of facially neutral policies to discriminate against minorities in various contexts.
Earlier today, the US Court of Appeals for the Fourth Circuit issued a divided 2-1 decision rejecting a lawsuit challenging anti-Asian discrimination in admissions at the Thomas Jefferson High School for Science and Technology (known as "TJ"), a selective public school in Fairfax County, Virginia. In 2020, TJ adopted a new admissions policy that, while racially neutral on its face, was actually intended to reduce the percentage of Asian-American applicants accepted at the school, in order to increase the percentage of other groups, so as to get a student body closer to the population demographics of Fairfax County. Federal district Judge Claude Hilton ruled that the new policy unconstitutional because it was adopted for the purpose of promoting "racial balancing" and also motivated by hostility towards Asians.
Today's Fourth Circuit not only (wrongly, in my view) reverses the district court decision, but does so in a way that sets a dangerous precedent that would allow a wide range of government policies discriminating against various minority groups.
Before going further, I should note that my wife, Alison Somin, is one of the Pacific Legal Foundation attorneys representing the plaintiffs in this case, on a pro bono basis. Readers who wish to discount what I say because of this connection are free to do so. But my interest in both anti-Asian discrimination in education and the more general issue of the use of "facially neutral" policies for discriminatory purposes long predates Alison's work on this case. Anyone who cares to check will, I think, find that my take on the TJ case is completely consistent with my previously expressed views on these two interconnected topics.
Longstanding Supreme Court precedent holds that evidence of unconstitutional motivation for "facially neutral" policies shifts the burden of proof to the government to show that they would have enacted the same policy even in the absence of illicit motives. If they fail to prove that, then the policy must be subjected to strict scrutiny, which it would be unlikely to survive. In the TJ case, the Fourth Circuit majority opinion by Judge Robert Bruce King holds that even the most blatant discriminatory motivations do not trigger strict scrutiny so long as the group being targeted for discrimination by "facially neutral" means is still represented in proportion to its percentage of the relevant population (or more). Under the new admissions policy, Asians were still 54% of accepted applicants (as compared to 73% under the old one). Since that is still higher than the Asian percentage of the applicant pool, evidence of discriminatory intent becomes irrelevant:
The proper metric in these circumstances requires, first, an evaluation of a given racial or ethnic group's share of the number of applications to TJ versus that group's share of the offers extended — in other words, the group's "success rate" in gaining admission to TJ under the challenged admissions policy….
When the proper disparate impact analysis is applied in this situation, it is clear that Asian American applicants to TJ suffer from no such detriment. The admissions data for TJ's class of 2025, the first class selected using the challenged admissions policy, tells much of — if not all of — the story. In 2021, Asian American students accounted for 48.59% of the applications to TJ's class of 2025, but actually secured 54.36% of the
admission offers made for that class….. Asian American applicants were thus the only racial or ethnic group to receive offers notably in excess of its share of the applicant pool in 2021, producing the highest admissions "success rate" of any such group.
Judge Allison Jones Rushing effectively explains the dangerous flaws in this reasoning in her dissenting opinion:
[T]he majority rejects the very possibility that a State could ever discriminate against a racial group by intentionally reducing its success in a competitive process to a level equal with that of other races. According to the majority, the Board could not have
discriminated against Asian students by reducing their success rate—even intentionally and with a discriminatory purpose—so long as Asian students remain no less successful than students of other races. I don't see why not. "Invidious discrimination does not become less so because the discrimination accomplished is of a lesser magnitude." Feeney, 442 U.S. at 277. If a State enacts a policy with the purpose and effect of trimming down the success of one particular racial group to a level the State finds more appropriate, it has discriminated against that racial group.
I and others have previously compared today's anti-Asian discrimination in selective educational institutions to discrimination against Jewish applicants in earlier eras. Under the Fourth Circuit's reasoning, old-time policies using facially neutral means to reduce the percentage of Jewish students at elite universities would be perfectly legal, so long as Jewish applicants were admitted in the same percentages as other groups. And that would be true no matter how extensive the evidence that the new policy was motivated by anti-Semitic prejudices, or that Jewish applicants had to have stronger academic records to be admitted than those required of gentiles.
The same point applies all kinds of discrimination against racial, ethnic, and religious minorities. So long as facially neutral means are used and the overall success rates of different groups are similar, this reasoning would allow even the most blatant discriminatorily motivated policies intended to reduce the participation of some groups for the benefit of others. There are many situations where members of some minority groups are "overrepresented" in educational institutions, government contracting, and elsewhere, relative to their percentage of the applicant pool or of the general population. Jews, Muslims, Asians, atheists, and Mormons are obvious examples of groups that fit that bill in a variety of educational and professional settings.
If a federal or state government adopted a seemingly neutral policy to try to reduce the percentage of blacks among professional football or basketball players, that too would pass muster, so long as the percentage of blacks in the the relevant pro sports leagues remained at least as high as the percentage of blacks among those seeking employment as players. Following the Fourth Circuit's approach, Donald Trump's travel ban targeting residents of several Muslim-majority nations would also be perfectly fine, so long as Muslim applicants for visas to enter the United States had an overall success rate comparable to that of non-Muslims (the Supreme Court in fact upheld the ban based on badly flawed reasoning of a different type). Progressives and others inclined to support today's decision should consider whether they are really willing to live with these troubling implications.
Even if you generally support the use of racial preferences for affirmative action or believe that the evidence of illicit motivation in the TJ case wasn't strong enough to justify striking down the new admissions policy, you have good reason to oppose the Fourth Circuit's awful disparate impact reasoning. It sets a dangerous precedent that goes far beyond the facts of this specific case, or even the education setting more generally.
In addition to the badly flawed reasoning on "disparate impact," the majority also claims that there wasn't sufficient evidence of discriminatory motivation. I will not go over all the relevant details here. But I think Judge Rushing does a good job of going over the extensive evidence that the Fairfax County school board was motivated by considerations of racial balancing generally, and hostility to Asians specifically (see pp. 53-66 of her dissent). As she notes, members of the School Board themselves admitted (in private communications) that anti-Asian bigotry played a major role in the process:
For example, in text messages, Board members Stella Pekarsky and Abrar Omeish
agreed that "there has been an anti [A]sian feel underlying some of this, hate to say it lol"and that Asian students were "discriminated against in this process." J.A. 119. They observed that [Fairfax County school superintendent Eric] Brabrand "ha[d] made it obvious" with "racist" and "demeaning" remarks and that he "[c]ame right out of the gate blaming" Asian students and parents. J.A. 119, 125, 128. They reasoned that Brabrand's proposals would "whiten our schools and kickou[t] Asians," J.A. 119….
I summarized some additional evidence of anti-Asian motivation here and here. It includes such things as claims that having too many Asians would damage TJ's "culture," negative stereotypes about Asian-American parents and students, and Virginia state legislator Mark Keam's complaints 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 the district court found, Fairfax County school officials were influenced in part by pressure from the state government.
The majority also relies, in part, on the Supreme Court's precedents authorizing the use of racial preferences to pursue the benefits of "diversity" in education. Those precedents are far from a model of clarity. But as Judge Rushing notes, they do not permit the pursuit of racial and ethnic balancing in order to more closely align the percentages of different groups in the student body with the demographic balance in the general population. They also don't permit the deliberate targeting of a specific minority group for purposes of reducing its representation, as Fairfax did here.
A final problematic aspect of the Fourth Circuit ruling is that the court didn't delay it to take account of the Supreme Court's upcoming decisions in the Harvard and University of North Carolina cases assessing the legality of "diversity"-based racial preferences in higher education. These cases feature a number of issues relevant to the TJ litigation, including the extent to which "diversity" can justify racial preferences, and (in the Harvard case) the apparent use of facially neutral policies to reduce the number of Asian students. When a pending Supreme Court decision is likely to be relevant to a case before a lower court, the latter will often withhold judgment until the Supreme Court ruling comes down. The Fourth Circuit would have been well advised to follow that practice here.
If the Supreme Court severely restricts or abolishes "diversity" preferences in the Harvard and UNC cases, and especially if it also cracks down on facially neutral anti-Asian admissions policies, it might in time also vacate and remand the Fourth Circuit ruling, so that the latter can be reevaluated in light of the new Supreme Court decision. Unless and until that happens, today's decision is likely to stand as a dangerous precedent.