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Ben Weingarten

Federalist Senior Contributor; Claremont Institute Fellow

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Is the Supreme Court caving on affirmative action?

Feb 27

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Months after the Supreme Court rejected affirmative action in college admissions, Chief Justice John Roberts and a majority of justices declined to reconsider whether the updated admissions policy at Virginia’s Thomas Jefferson High School for Science and Technology (TJ), one of the nation’s top-ranked high schools, discriminates against Asian Americans. A lower court’s decision supporting the admissions process remains intact.

Straight Arrow News contributor Ben Weingarten argues that the chief justice got it wrong and the consequences will “perpetuate the injustice of racial discrimination.”

The case presented the very challenge the court seemed to want to preempt in its landmark SFFA v. Harvard decision outlawing race-based admissions. Then, Chief Justice John Roberts, writing for the majority, warned that schools thinking of skirting the ruling through using clever proxies for racial preferences to engineer desired racial mixes in classes — that is, to pursue the ends of affirmative action through alternative means — better think twice.

“Despite the dissent’s assertion to the contrary,” the chief justice wrote, “universities may not simply establish through application essays or other means the regime we hold unlawful today.”

Yet in Coalition for TJ, one school seems to have done just that. Only two of the nine justices stood ready to fight. Chief Justice Roberts was missing in action.

The “TJ” stands for Thomas Jefferson High School for Science and Technology, a highly selective magnet school in Fairfax County, Virginia. Before 2020, the school had a race-blind admissions policy based largely on standardized test scores. Asian Americans dominated under this system, typically receiving 65 to 75 percent of offers to attend the school. But as the woke, anti-cultural revolution roiled the country that summer, some rebelled. The school’s principal and a board member complained the institution didn’t reflect the racial makeup of the community. 

The board member demanded, in communications with the superintendent, that he “be explicit in how we are going to address the underrepresentation of [B]lack and Hispanic students.”

Is the Supreme Court caving on affirmative action?

 

On February 20th the highest court in the land denied the petition for writ of certiorari in Coalition for TJ v. Fairfax County Schoolboard

 

The case presented the very challenge the court seemed to want to preempt in its landmark SFFA v. Harvard decision outlawing race-based admissions.

 

Then, Chief Justice John Roberts, writing for the majority, warned that schools thinking of skirting the ruling through using clever proxies for racial preferences to engineer desired racial mixes in classes – that is, to pursue the ends of affirmative action through alternative means – better think twice.

 

“[D]espite the dissent’s assertion to the contrary,” the chief justice wrote, “universities may not simply establish through application essays or other means the regime we hold unlawful today.”

 

Yet in Coalition for TJ, one school seems to have done just that. 

 

Only two of the nine justices stood ready to fight. 

 

Chief Justice Roberts was missing in action.

 

The “TJ” stands for Thomas Jefferson High School for Science and Technology, a highly selective magnet school in Fairfax County, Virginia. 

 

Before 2020, the school had a race-blind admissions policy based largely on standardized test scores. 

 

Asian-Americans dominated under this system, typically receiving 65 to 75 percent of offers to attend the school.

 

But as the Woke anti-cultural revolution roiled the country that summer, some rebelled.

 

The school’s principal and a board member complained the institution didn’t reflect the racial makeup of the community. 

 

The board member demanded, in communications with the superintendent, that he “be explicit in how we are going to address the underrepresentation of [b]lack and Hispanic students.”

 

The board approved a resolution articulating a goal to have the school’s “demographics represent [those of] the NOVA [Northern Virginia] region.” 

 

It modeled out various changes to admissions policy, and their effect on the composition of the student population by race.

 

It ultimately overhauled the admissions policy, instituting a new system in December 2020 ditching standardized tests altogether. 

 

Instead, the school pursued a facially race-neutral policy that would dramatically reduce the proportion of Asian-American students in incoming classes.

 

It did so both by changing the criteria for selecting applicants, and the pool of applicants from which it would be selecting.

 

The new standards included not only a student’s GPA, but a “portrait sheet,” problem-solving essay, and “experience factors.” 

 

The portrait sheet measures “soft” skills like one’s ability to work with other students. 

 

Experience factors include one’s eligibility for free or discounted meals, status as an English language learner, eligibility for special ed services, and attendance at a school that had sent a low percentage of students to the Thomas Jefferson school previously.

 

The policy also mandated that slots in each incoming freshman class be allocated to 1.5% of the student population of each eighth-grade class in the district – accounting for about 80% of the school’s approximately 550 seats. 

 

The remaining approximately 100 seats would be earmarked for the general student population, which would also be evaluated according to the new less-merit based standards.

 

The end result? 

 

The percentage of Asian-American students receiving offers to attend the school plummeted from 73% of all offers before the policy was implemented, to 54% of all offers the year after. 

 

The Coalition for TJ, representing parents and children opposed to the revised admissions policy, claimed it was discriminatory, violating the Fourteenth Amendment’s Equal Protection Clause.

 

A district court agreed, enjoining the school board from using its new criteria.

 

But on appeal the Fourth Circuit disagreed, reversing the decision.

 

So the plaintiffs appealed to The Supremes.

 

Yet despite their ruling in SFFA invalidating Harvard and UNC’s affirmative action programs on Fourteenth Amendment grounds, and despite the Fourth Circuit panel’s varying opinions in overturning the district court, SCOTUS denied the plaintiffs’ petition for writ of certiorari.

 

Justices Samuel Alito and Clarence Thomas were the only members to dissent, with Alito writing a blistering response to his colleagues.

 

The Fourth Circuit had ruled that despite the dramatic decline in offers to Asian-American resulting from the new admissions policy, “Asian American applicants to TJ enjoy far greater success in securing offers of admission than do prospective students from any other racial or ethnic group.” 

 

Therefore, the Coalition’s “efforts…to prove a disproportionate, adverse impact on Asian American students fall flat.”

 

In his reading of the ruling, Justice Alito said the panel there ruled against the plaintiff: simply because the challenged changes [to admissions standards] did not reduce the percentage of Asian-American admittees below the percentage of Asian-American students in the schools in the jurisdictions served by the magnet school. What the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe. This reasoning is indefensible, and it cries out for correction.

 

Alito added that by its own logic, the Fairfax County school board “could have adopted a policy designed solely to reduce the Asian-American offer rate and still evaded liability.”

 

Judge Allison Jones Rushing, the sole dissenting Fourth Circuit judge on the panel, noted that under “the majority’s approach…[i]t would not matter…if a new law cut a racial group’s success rate from 90% to 30% and the legislature was open about its discriminatory purpose, as long as no other racial group succeeded at a higher rate.”

 

This would be a patently absurd outcome. 

 

In SFFA v. Harvard, Chief Justice Roberts cited past precedent regarding efforts to evade policies aimed at racial balancing via clever workarounds, in writing that:

 

“‘[W]hat cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows,’ and the prohibition against racial discrimination is ‘levelled at the thing, not the name.’”

 

Yet he and others remained silent here.

 

Perhaps the Court is waiting for a more compelling demonstration of discrimination by proxy in admissions to take on this matter.

 

Maybe in the minds of some justices the Fourth Circuit’s reasoning can somehow be harmonized with their own in SFFA.

 

But in the interim, we can expect the injustice of continued, court-sanctioned racial discrimination to fester.

 

As Justice Alito concluded: the Fourth Circuit’s reasoning is a virus that may spread if not promptly eliminated. Indeed, the First Circuit has already favorably cited the Fourth Circuit’s analysis to disparage the use of a before-and-after comparison in a similar equal protection challenge to a facially neutral admissions policy.

 

The Court has delivered another sobering reminder that its purportedly conservative orientation by no means ensures that it will rule rightly.

 

In the end, it is no panacea.

 

There are few substitutes for legislative action, and fewer for the cultural change on which all else ultimately rests, foretelling coming chaos in legal disputes not only over admissions policies in the academy, but those the DEI regime is imposing across all societal institutions.

 

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