White and Asian parents are fighting over how many black students should be allowed into Thomas Jefferson High School for Science and Technology in Alexandria, Virginia. The school, universally known as “T.J.,” is among the finest STEM high schools in the United States. Given its role as a feeder school into the upper echelons of tech in America, this is more than another culture war battle. It is not an exaggeration to say it affects national security, which is why the issue is likely to be sorted out by the Supreme Court.

From its beginnings until summer of 2020, the only way into prestigious T.J. for residents was to pass the rigorous entrance exam. Following the death of George Floyd, T.J. officials became concerned about their negligible number of black and Hispanic students and changed admissions standards. The test was gone, replaced by a holistic review that included “experience factors, including students who are economically disadvantaged, English language learners, special education students, or students who are currently attending underrepresented middle schools.”

The results were as intended: Without the entrance test, black students grew to 7 percent from 1 percent of the class, while the number of Asian American students fell to 54 percent from 73 percent, the lowest share in years. 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 American parents objected to the new plan and started the Coalition for T.J. The coalition filed a lawsuit with the help of the libertarian Pacific Legal Foundation. Instead of seeing the weighting of experience factors as a way to level the playing field for underrepresented groups, they saw racism against Asian American students. The experience factors were just a work-around for straight up race-based decisions.

In May 2023, after some action in lower courts, the Court of Appeals for the Fourth Circuit ruled in favor of the new admissions process, finding T.J. had not discriminated against Asian American students in its admissions policies. The appellate court, in a two to one ruling, found that there was not sufficient evidence the changes were adopted with discriminatory intent. Writing for the majority, Judge Robert King, a Clinton appointee, said that the school had a legitimate interest in “expanding the array of student backgrounds.” Too bad for the Asians, the on-and-off again minority; there's only so many seats available at T.J. The court finding was that T.J.’s essay-based admission policy was race neutral and was not a proxy for race-based decisions. T.J. was able to make racially-motivated decisions without appearing legally to make racially-motivated decisions.

This was of course all before the June 2023 Supreme Court rulings in Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, which asked three questions: Can race be a factor for admission? Has Harvard violated Title VI of the Civil Rights Act by penalizing Asian American applicants by engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives? And can a university reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity?

In short: Can race continue to be an admission factor? The emphasis was on displacing Asian American students with black ones, which is why the Supreme Court cases saw amici filings by the Chinese American Citizens Alliance, the Asian American Coalition For Education, and the Asian American Legal Foundation. Also included: the Coalition for T.J.

The Pacific Legal Foundation now wants the Supreme Court to overturn the Appeals Court decision, arguing that T.J.’s new admissions policies disadvantage Asian American applicants. “They are, in our view, using proxies for race in order to get a racial result,” said Joshua Thompson, a lawyer for the Pacific Legal Foundation. In its filing asking the Supreme Court to review the case, the Foundation argued that T.J.’s admissions plan was “intentionally designed to achieve the same results as overt racial discrimination.” Specifically referring to the Supreme Court’s June affirmative action decision, the filing said that its “guarantees might mean little if schools could accomplish the same discriminatory result through race-neutral proxies.” Is T.J. flouting the most recent Supreme Court decision?

It should be a hell of a fight if the Supreme Court takes the T.J. case. In a forthcoming paper in the Stanford Law Review quoted in the New York Times, Sonja Starr, a professor of law and criminology at the University of Chicago, writes the plaintiffs are “laying the groundwork for a much bigger legal transformation” that could ban any public policy effort to close racial gaps, ultimately reverberating in “areas beyond education, such as fair housing, environmental permitting, and social welfare policies.”

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In tension are the most basic of rights, that institutions should not discriminate based on race versus a more modern belief that institutions have a fundamental role to play in achieving racial balance in schools and the workplace. The Court’s decision in Harvard, et al, did not address T.J.’s proxy concept, that by focusing on say essays schools could achieve racist ends by proxy means.

In dissent at the Appeals Court, Judge Allison Rushing wrote the majority refused “to look past the policy’s neutral varnish” and consider instead “an undisputed racial motivation and an undeniable racial result.” Rushing, appointed by Trump, added that the Constitution’s guarantee of equal protection “would be hollow if governments could intentionally achieve discriminatory ends under cover of neutral means”—as T.J. is doing.

The T.J. case matters; if the Supreme Court rules for the Asian American parents’ group, that means race-neutral proxies for affirmative action will be the next to fall. A ruling the other way neuters the Harvard decision, creating a simple end-run around to ensure racial “balance.”