Politics Foreign Affairs Culture Fellows Program

 TJHS and the Future of Affirmative Action

Will colleges and high schools just come up with new proxies for race in their admissions criteria?

(John M. Chase/Creative Commons)

A decision by the Supreme Court in the companion cases of Students for Fair Admissions v. University of North Carolina/Harvard College is due very soon. It is widely held the decision will do away with or greatly weaken affirmative action in college admissions, removing or dramatically limiting race as an acceptable criterion. But far from helping solve the festering problem of race in America, the Supreme Court decision will simply shift the battle from affirmative action to so-called “race-neutral criteria.”

Racially neutral criteria are an already-in-place end-run around any potential end to affirmative action, designed to pretend criteria such as class rank or home zip code are not racial in many locations. The theory of racial neutrality in admissions decisions holds that the use of such “neutral” criteria to create racially balanced classrooms is proper where affirmative action was once called into play to do the same.


At present, schools may use race as an admissions criterion as long as it is not the only basis for a decision, with the implied “so long as the goal is diversity (good) and not whitewashing (bad).” This allowed a nation pretending to strive toward equality to instead enact the opposite, by upholding separate standards based on skin color.

The hypocrisy began with Regents of the University of California v. Bakke, a 1978 Supreme Court case which held that a university had violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 if it made admissions decisions on the “definite and exclusive basis” of race. That bit about “definite and exclusive basis” was crucial—race could be a criterion, but just not the only one.

The Court ruled that a university’s use of racial quotas in its admissions process was unconstitutional, but a school’s use of affirmative action to accept more minority applicants was constitutional. In this case, the university’s offense was being too obvious; the University of California explicitly held sixteen out of 100 admission spots exclusively for black students instead of just putting its thumb on the scale elsewhere in the process and—presto!—filling those slots with black students.

In Grutter v. Bollinger (2003), the Supreme Court upheld the University of Michigan Law School’s admissions policy, which used racial preference (bad) to promote diversity (good). Black applicants were admitted under different standards than members of every other group. The fudge was again to say that affirmative action is constitutional so long as it treats race as one factor among many, and does not substitute for individualized review of the applicants.

But Grutter in 2003 came with an interesting addendum: Affirmative action, it argued, was supposed to be a temporary policy, an imperfect expedient, while society worked out the larger issues. Justice Sandra Day O’Connor wrote, “We expect that twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest in student body diversity.” Some two decades later, with that imperfect expedient likely to be declared unconstitutional, what comes next?


Though the expected Supreme Court decision will focus on university admissions, the next battleground will likely take place at a high school in Northern Virginia. Thomas Jefferson High School for Science and Technology—known to everyone in the area as “T.J.”—is considered one of the best STEM high schools in the country. Until about a year ago, the only way to get in was to pass a very competitive entrance exam. Being admitted to T.J. meant you were a smart kid with the discipline to put in hard hours with no guarantee of success, a perfect definition of those who would also go on to succeed at MIT, CalTech, or an Ivy.

However, in the aftermath of George Floyd, this was not enough. As many as 73 percent of students admitted to Thomas Jefferson High School were Asian. Only about 2 percent of T.J. students were black. T.J.’s principal said “Our thirty-two Black students and forty-seven Hispanic students fill three classrooms. If our demographics actually represented those of the county’s public schools, we would enroll 180 Black and 460 Hispanic students, filling nearly 22 classrooms.”

The answer was T.J.’s entrance exam was replaced with “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.”

In addition, spots for the top students from every public middle school in the area (several of which are predominantly black or Hispanic) were set aside, pushing more black and other non-white and non-Asian students into T.J. Ignored of course is that the term “Asian” itself is yet another racial fudge, that somehow Chinese, Thais, Japanese, Koreans, Filipinos, Laotians, Indians, Bangladeshis, et al., are part of one omnibus racial rejection pile.

It worked, for T.J.: The percentage of Asian American students dropped from 73 percent to 54 percent. The percentage of black students grew from 2 to 7 percent while the percentage of Hispanic students grew from 3 to 11 percent.

Despite the obvious racially divided results, and perhaps cleverly anticipating the Supreme Court's upcoming decision doing away with affirmative action, T.J. is drawing the next line in the sand, claiming its criteria are racially neutral, and emphasizing the fact that admissions officers at the school are not told the race, sex, or name of any applicant. Harvard is also toying with the idea of using such racially neutral criteria to judge applicants in part based on likability, courage, and kindness, some of which are already covered by the Ivy’s interview process.

So who is kidding whom here? In the face of the end of affirmative action, are racially neutral criteria just another workaround to allow schools to patch together a student body racially diverse enough to satisfy 2023's woke standards?

Though it is uncertain the coming affirmative action decision will address racial neutrality, the courts are indeed aware of the issue. After the Supreme Court passed on the T.J. case last year (in the context of an application for emergency relief) and remanded it to a lower court, a divided three-judge panel at the Fourth Circuit federal appeals court in May allowed T.J. to continue with its revised admissions policy.

But in a dissent that seemed to be addressed to a Supreme Court of some future date, Trump-appointed Judge Allison J. Rushing wrote the majority had refused “to look past [T.J.'s] policy’s neutral varnish” and consider instead “an undisputed racial motivation and an undeniable racial result," and that the Constitution’s guarantee of equal protection “would be hollow if governments could intentionally achieve discriminatory ends under cover of neutral means.”

Just as the Supreme Court considered discriminatory decisions by race as constitutional ("affirmative action"), the courts will soon face the question of whether so-called racially neutral criteria are constitutional. The issue is likely to come before the Supreme Court as early as this autumn, on the heels of the downfall of affirmative action.