Parents and students at Thomas Jefferson High School for Science and Technology set the table this week for the next big test of affirmative action, asking the Supreme Court to overrule the Virginia school’s new admissions policy as unfair discrimination against Asian Americans.
Coalition for TJ says the policy, which reserves some slots at the highly selective school based on geography, was intended to promote Black and Hispanic students while limiting the number of Asian Americans, who had come to dominate the admissions process.
Two months ago, the high court struck down race-based affirmative action policies at Harvard University and the University of North Carolina. The ruling said using a “plus” factor for Black and Hispanic applicants based specifically on race was unconstitutional.
The Thomas Jefferson case tests the legality of policies that don’t actively give preference but still have the effect of boosting one race or ethnicity over another. Opponents label it “proxy discrimination.”
“This court has long recognized that a policy ‘fair on its face and impartial in appearance’ may violate the Equal Protection Clause if ‘it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances,’” the Coalition for TJ said in its petition to the justices.
Thomas Jefferson is operated by Fairfax County Public Schools, though it accepts students from some surrounding jurisdictions. TJ, as it’s known locally, regularly ranks as the top public high school in the country. Some families go to great lengths to maximize chances for admission.
Anywhere from 2,500 to 3,000 students apply annually, and the school admits about 550.
Asian American families in particular have signed up for prep courses and often cluster in regions of the county that have the best-performing elementary and middle schools, looking to boost their prospects.
When Asian American admissions grew to 73% of the student body, the school system changed the admissions policy. It dropped its admissions test and capped the number of students who could be accepted from any one middle school.
That change was particularly damaging to Asian students, whose share of the admissions dropped to 54%. Black admissions rose from 1% to 7% of the class, Hispanic admissions went from 3% to 11%, and White admissions climbed from 18% to 22%.
TJ did not respond to a request for comment for this report.
In the lower courts, a federal district judge ruled in favor of the Coalition for TJ, finding that the school system was fixated on racial balancing when it pursued the new policy, to the detriment of Asian American students.
The 4th U.S. Circuit Court of Appeals reversed that ruling in May. In a 2-1 decision, the judges found that the policy on its face was race-neutral and Asian Americans still accounted for about 20% of the county’s student population.
“On this record, and with application of the proper legal standard, the policy visits no racially disparate impact on Asian American students,” Judge Robert B. King, a Clinton appointee, wrote for the majority.
A month later, the Supreme Court issued its rulings in the Harvard and North Carolina cases, deciding that the Constitution requires that students be treated based on their “experiences as an individual — not on the basis of race.”
“Many universities have for too long done just the opposite,” Chief Justice John G. Roberts Jr. wrote for the court’s six-justice majority. “In doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.”
He said schools can consider race on an individualized basis, such as valuing applicants who have faced particular hurdles or adversity because of their race.
The ruling sent colleges and universities on a quest for ways to achieve diversity on campus without race-based affirmative action.
In addition to the chief justice’s idea, schools have pondered using socioeconomic status and geography to achieve racial diversity.
In its petition to the high court, the Coalition for TJ said the new affirmative action ruling would be hollow if schools use seemingly race-neutral criteria to achieve “race conscious” outcomes.
“Only a decision from this court can resolve this question and ultimately stop this troubling trend,” the challengers wrote.
The prominence of Asian American plaintiffs adds another wrinkle to the decades-old debate on affirmative action, which had chiefly been a matter of Black versus White.
In the TJ case, the district judge who ruled against the school determined that the school board worked in the wake of George Floyd’s death in 2020 to improve admissions of Black students, tamping down on Asian American admissions.
Judge Claude M. Hilton said the school system’s actions were “infected with talk of racial balancing.”
The Coalition for TJ is represented by the Pacific Legal Foundation. The organization announced Tuesday that it had filed the petition a day earlier, though the justices are on summer recess and have no planned orders to release until Sept. 8.
At least four of the nine justices must give approval for the Supreme Court to hear the case.
In a ruling last year, the justices allowed TJ to continue to use the new geography-based admissions program while the case winds its way through the courts.
Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented from that ruling, indicating at least some members could be inclined to have the court hear the full case now.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
Please read our comment policy before commenting.