Supreme Court turns away affirmative action dispute over Virginia high school's admissions policies

Washington — The Supreme Court on Tuesday turned away a challenge to the admissions policy at a prestigious Virginia high school that administrators say is designed to mitigate socioeconomic and geographic barriers for prospective students.

The decision from the high court not to take up the appeal by a group of parents challenging the admissions policies at Thomas Jefferson High School for Science and Technology leaves intact a lower court decision upholding the criteria, which school officials argue is race neutral. The U.S. Court of Appeals for the 4th Circuit concluded last year that the goal of the program is to foster diversity among the school's student body, though the parents that brought the case said it impermissibly discriminated against Asian-American students. 

Justices Samuel Alito and Clarence Thomas dissented from the court's decision not to hear the case. In a dissenting opinion joined by Thomas, Alito said the admissions model adopted by the high school "has been trumpeted to potential replicators as a blueprint for evading" the Supreme Court's affirmative action decision.

"The holding below 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. That is indefensible," Alito wrote. He concluded that "the Court's willingness to swallow the aberrant decision below is hard to understand. We should wipe the decision off the books."

Affirmative action at the Supreme Court

The case is the latest involving affirmative action to arrive at the court since it issued its landmark ruling last June invalidating the race-conscious admissions policies at Harvard and the University of North Carolina. In the wake of its 6-3 decision, the Supreme Court has already been asked to temporarily stop the U.S. Military Academy at West Point from considering race in its admissions process, but declined to do so.

The challenge to West Point's policies arose out of a footnote in the majority opinion authored by Chief Justice John Roberts in the Harvard and University of North Carolina cases, in which he said the Supreme Court's decision did not apply to the nation's service academies. Roberts' opinion also warned that schools shouldn't try to get around the court's affirmative action ruling through application essays or other means, writing "'[w]hat cannot be done directly cannot be done indirectly.'"

This case involves the admissions process at an Alexandria, Virginia-based high school, which is considered to be one of the best in the country. A group of parents in Fairfax County, a wealthy enclave of Washington, D.C., argued that admissions criteria imposed at Thomas Jefferson High School seek to "indirectly" use race as a factor, which the Supreme Court said would be unlawful.

Admission to the magnet school, known as TJ, was previously based on standardized tests and a combination of GPA, teacher recommendations and essays until 2020. But that year, the Fairfax County School Board, which oversees the high school, eliminated entrance exams from Thomas Jefferson's admissions process and put in place a holistic system.

The school board argued in court filings that under the old admissions processes, admitted classes overwhelmingly were made up of students from a small subset of Fairfax County's wealthiest areas. But under the new program, seats are reserved for top students from each of the county's middle schools.  The remaining spots are awarded to highest-evaluated applicants, as well as to students based on a number of socioeconomic factors, including whether students are from low-income families, are learning English as a second language or attended a "historically underrepresented" middle school.

The policy is race-neutral, according to the Fairfax County School Board, and admissions evaluators do not know an applicant's name, gender, race or ethnicity. They also cannot keep track of the racial composition of an incoming class during the admissions process, the board said in court papers.

But a grassroots group of parents called The Coalition for TJ sued the Fairfax County School Board in 2021, arguing that the revamped admissions policy is unconstitutional because it discriminated against Asian-American applicants.

In 2021, the first year under the new system, fewer Asian-American applicants were admitted than the prior year and the share of Asian-American students receiving admissions offers fell from 73% to 54%. Every other racial group saw an increase in admissions numbers, according to court filings: Admissions offers to White students rose from 18% to 22%; offers to Black students grew from less than 2% to nearly 8%; and offers to Hispanic students jumped from 3% to 11%.

A federal district court in Alexandria ruled for the coalition in February 2022, finding that the board's redesigned policy was "designed to increase Black and Hispanic enrollment which would, by necessity, decrease the representation of Asian-Americans at TJ," and adopted with discriminatory intent.

U.S. District Judge Claude Hilton blocked the board from implementing the policy, but a divided panel of three federal appeals court judges eventually reversed the ruling and upheld the admissions program. 

The 4th Circuit concluded that "the undisputed facts show only that the Board intended to improve the overall socioeconomic and geographic diversity of TJ's student body," and found that the coalition failed to prove that the board was motivated by discriminatory intent.

"The challenged admissions policy's central aim is to equalize opportunity for those students hoping to attend one of the nation's best public schools, and to foster diversity of all stripes among TJ's student body," the 4th Circuit said in its 2-1 decision. It continued: "Expanding the array of student backgrounds in the classroom serves, at minimum, as a legitimate interest in the context of public primary and secondary schools. And that is the primary and essential effect of the challenged admissions policy."

The Supreme Court was asked to weigh in at an earlier stage in the proceedings and denied a request from the Coalition for TJ for emergency relief in April 2022, more than a year before its affirmative action ruling. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said they would have granted the group's request to block the admissions policy.

The parents returned to the Supreme Court in August, asking the justices to decide whether the board violated the Constitution's Equal Protection Clause when it overhauled the admissions criteria at the high school. Citing the court's June affirmative action decision, the group warned that its "guarantees … might mean little if schools could accomplish the same discriminatory result through race-neutral proxies."

The coalition told the court in a filing that while it has said racial balancing through racial classifications is impermissible, it has not yet explicitly addressed whether student body diversity can be achieved through race-neutral means.

"The longer this question is not resolved, the more incentive school districts (and now, universities) will have to develop workarounds that enable them to racially discriminate without using racial classifications," its lawyers wrote.

But the Fairfax County School Board argued that the new policy removes socioeconomic barriers to admission to Thomas Jefferson High School and is race neutral and race blind. 

"The policy did not in fact result in a student body that matches the demographics of the County, maintains predetermined percentages of any racial group, or otherwise reflects racial balance of any sort," they said in a filing.

The board said there was no evidence supporting the coalition's "reckless" claim that Thomas Jefferson's admissions criteria were changed to discriminate against Asian-Americans, and noted that more Asian-American students from poor families living in less affluent areas of Fairfax County were admitted under the new policy.