School board urges SCOTUS to leave in place diversity-focused admissions at famed Va. high school

A D.C.-area school district is fighting to keep the U.S. Supreme Court out of a legal challenge to its nationally renowned high school's new diversity-focused admissions policy, which resulted in a steep drop in Asian-American admissions its first year.

The high court's decision on whether to leave the policy in place during appeal could telegraph its intentions for a bigger case it's hearing this fall on the same issue: Harvard and University of North Carolina admissions policies that allegedly discriminate against Asian Americans.

Virginia's Fairfax County School Board claims the "race-neutral" policy at Thomas Jefferson High School for Science & Technology is firmly in line with SCOTUS precedent on admissions policies with racial implications, including the Texas "Top Ten percent" plan.

Represented by former Obama administration Solicitor General Donald Verrilli, the board wants to protect a 4th U.S. Circuit Court of Appeals order that blocked a trial judge from suspending the admissions policy while the former considers the board's appeal.

The trial judge found the new TJ policy caused a "substantial racial impact" on Asian Americans and "was infected with talk of racial balancing from its inception." The parent-led Coalition for TJ, which favors the previous policy, filed an emergency application with Chief Justice John Roberts when the 4th Circuit stayed the ruling. 

"Unless the stay is vacated, hundreds of Asian-American applicants to TJ, including children of Coalition members, will be forced to compete for seats at TJ in a system intended to discriminate against them because of their race," the coalition's April 8 application said. Roberts can himself rule or refer the matter to the full court.

Virginia Attorney General Jason Miyares and his counterparts in 15 other states, all Republicans, are backing the coalition's position. "Though facially race-neutral, the new policy targeted Asian-American applicants with surgical precision" by giving preference to students from "historically underrepresented" middle schools, they wrote in an April 12 brief.

The board responded April 13 that it would suffer "palpable and grave" harm if the policy were suspended. 

"Final admissions decisions for the freshman class that will enter TJ are due this month" following "thousands of applications for admission," it told the Supreme Court. "Overhauling the admissions process at this late date would be convulsive" and likely harm students from low-income Asian-American families who struggled under the earlier policy.

The new policy took effect with admissions for the 2021-2022 school year, in a process the coalition characterized as "atypical" and rushed. 

The board eliminated the standardized testing requirement just a month before tests were scheduled in fall 2020 and approved the new policy that December, guaranteeing TJ seats to 1.5% of the 8th grade class from each eligible public middle school. About 100 of 550 seats remain "unallocated" and are available to private and homeschooled students as well.

Asian-American students disproportionately come from a handful of middle schools that historically dominated TJ admissions, the coalition said. They received 56 fewer TJ offers in a year with 64 additional seats for the incoming class, and were the only racial group to fall in offer representation, from 73% to 54%.

The school board's response to the emergency application said the trial court's findings "lacked any support in the record and disregarded this Court's precedents." It noted Asian Americans received a higher percentage of offers than their share of applications.

Instead the court cited "year-over-year comparisons" that cannot prove "cognizable disparate impact" and didn't consider other explanations for the Asian-American drop. The policy "sets no racial quotas, goals, or targets" and evaluators don't even know the race of individual applicants. 

The Supreme Court has never imputed "invidious intent" to decisions that will foreseeably affect racial groups differently, the board said. The trial court's reasoning would make the Texas law, which guarantees admission to any state university for the top 10% of each high school class, "presumptively unconstitutional if they were even minimally successful in achieving their desired [diversity] aims."

The coalition responded April 14 that the Supreme Court was likely to review the case because lower courts haven't settled on the "proper standard for measuring disparate impact in an intentional discrimination claim." The board wants to "simplistically" compare applicants versus admitted students, while the coalition wants to compare "aggregate performance" of Asian-American students under each policy.

It accused the board of mischaracterizing the number of children that could be harmed by the current policy by citing declarations from two coalition members that were intended to demonstrate its "associational standing." In fact, the coalition has 200-plus members, "many of whom joined precisely because they have children who intend to seek admission to TJ."

The 4th Circuit stay will harm next year's applicants as well as current applicants because even the expedited schedule wouldn't get to oral argument until "one month before TJ begins accepting applications" this fall, the coalition said. 

"Under the Board's theory, a school district may adopt criteria designed to disfavor a particular racial group to achieve racial balance so long as members of that group still earn a share of seats commensurate with its proportion of the applicant pool," the response said. "In any other context, it would be clear that the government cannot discriminate against a racial group simply because its members have been successful in obtaining a benefit."