Racial discrimination (if for a good cause, you understand!) is now OK at one of America’s best high schools. Other schools can be expected to follow suit.

The Supreme Court declined certiorari—it will not hear the case—in Coalition for TJ v. Fairfax County School Board, in which a group of parents and students at the magnet Thomas Jefferson High School for Science and Technology (known to all as TJ) in Virginia, sued to revoke a new admissions policy they claimed discriminated against Asians and whites.

The Court’s denial left in place a ruling by the U.S. Court of Appeals for the Fourth Circuit affirming the discriminatory policy. The declination is in contrast to the Court’s earlier rejection of affirmative action, Students for Fair Admissions, Inc. v. Harvard, and of race as a primary admissions factor.

So what’s going on at TJ? Asian and white parents have been fighting over how many black students should be allowed in. Until the summer of 2020, the only way into prestigious TJ for residents was to pass a rigorous series of entrance exams. Following the death of George Floyd, TJ officials became concerned about their low number of black students and changed admissions standards.

The tests were replaced by a holistic review that included “experience factors,” eligibility for free or reduced price meals, students who are economically disadvantaged, English language learners, special education students, and students who are currently attending underrepresented middle schools.

The results were as intended: Without the entrance tests, the black student population grew from 1 to 7 percent of the class, while the number of Asian students fell from 73 to 54 percent. The number of white students also fell, but no one seemed to care that they accounted for only 22 percent of admissions, despite being 65 percent of the county population.

A group of mostly Asian parents objected to the new plan and started the Coalition for TJ. Instead of seeing the weighting of experience factors as a way to level the playing field for underrepresented groups, they saw racism against Asian students. The experience factors were just a work-around for straight up race-based decisions, a violation of the Equal Protection Clause of the Fourteenth Amendment.

The problem is that TJ lies in a racially and economically diverse place. There are a lot of middle and lower class whites, a fair number of middle class Asians, and a poor black minority. The school seems to think that if their matriculated population looks any different, it has to be discrimination. So, out with the standardized tests and in with experience factors that could be tweaked to achieve the desired racial mix.

Stakes were high—TJ is a feeder school into the Ivies. So parents fought back. The Coalition for T.J. sued the school system to reverse the admission process changes, which they allege were meant to diminish the number of Asian students. That qualified as discrimination based on race, they claimed.

In May 2023, after action in District Court, the Court of Appeals for the Fourth Circuit ruled in favor of the new admissions process, finding TJ had not discriminated against Asian students in its admissions policies. Too bad for the Asians, there are only so many seats available at TJ The court found TJ’s new admission policy was race neutral and was not a proxy for race-based decisions. TJ was able to make racially-motivated decisions without appearing legally to make racially-motivated decisions.

One factor TJ would rely on was an applicant’s public middle school zip code, a good indicator of race in a divided Fairfax county. Zip code was to become one proxy for race, a work-around to Students for Fair Admissions, Inc. v. Harvard which supposedly outlawed race alone as a primary admissions factor. Schools like TJ may use race as an admissions criterion so long as it is not the only basis for a decision, with the implied so long as the goal is diversity (supposedly good on its face) and not whitewashing. It is this policy the Supreme Court this month refused to review.

Associate Justice Samuel Alito, joined by Associate Justice Clarence Thomas, dissented from the most recent non-decision. Alito wrote, “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... the ‘core purpose’ of the Equal Protection Clause is ‘doing away with all governmentally imposed discrimination based on race.’” Further,

The District Court faithfully employed this framework. In addition to noting that the record contains direct evidence of racial intent, the court noted the stark change effected by the new policy, the unusual decision-making process that led to the change, and the fact that the change bore ‘more heavily on’ Asian Americans than members of other groups. The Fourth Circuit panel majority, by contrast, completely distorted the meaning of disparate impact. Even though the new policy bore ‘more heavily’ on Asian-American applicants (because it diminished their chances of admission while improving the chances of every other racial group), the panel majority held that there was no disparate impact because they were still over-represented in the TJ student body.

“The holding,” Alito added, “effectively licenses official actors to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups.”

The dean of UC Berkeley School of Law and the general counsel for the University of Michigan have openly advocated for schools to emulate TJ’s new admissions model. “Just as TJ offers a road map for other selective schools to skirt the Equal Protection Clause,” warned Alito, “so too does the Fourth Circuit’s reasoning offer a road map for other federal courts to provide cover. The Fourth Circuit’s reasoning is a virus that may spread if not promptly eliminated.”

Subscribe Today

Get daily emails in your inbox

Email Address:

It is unclear why the conservative Supreme Court refused to take up the question of TJ’s racially-motivated admissions policy, especially after effectively shutting down “affirmative action” per se in Students for Fair Admissions, Inc. v. Harvard. One law professor wrote it was “naive” for the Court to believe the courts would allow race-neutral strategies designed to promote diversity to survive. But it did.

Two things, however, are clear: TJ will continue to discriminate against Asian (and white) students in its admissions process, and racial proxies, such as zip code, will be favored by schools and universities seeking a way around Students for Fair Admissions, Inc. v. Harvard.

One step forward, two steps back for an education system based on merit, not skin color.