Fourth Circuit upholds racial discrimination by elite high school

The Supreme Court should take heed

By a 2-1 vote, a panel of the Fourth Circuit Court of Appeals has reversed a district court decision that found a change in the admissions policy of the elite Thomas Jefferson High School for Science and Technology (TJ) illegally discriminates against Asian-Americans. The stated intention of the policy was to address minority underrepresentation and to increase diversity, and the effect of the policy was to sharply reduce Asian-American representation at TJ. Nonetheless, the panel found no constitutional violation.

As in nearly all court of appeals cases involving hot-button issues, the outcome could have been predicted without knowing anything more than the party of the presidents who nominated the judges on the panel. Two of the judges, Robert B. King and Toby Heytens, were appointed by Democrats (Clinton and Obama, respectively). They formed the majority. Allison Jones Rushing, appointed by Trump, wrote the dissent.

But even allowing for the inevitability of the result, the majority opinion is scandalous. It dismisses clear evidence that the admissions policy change was designed to favor blacks and hispanics over Asian-Americans. And it contrives to find that the policy did not have a disparate impact on Asian-Americans, notwithstanding the shrinkage of that group’s representation at TJ and the decline in its success rate in obtaining admission.

The admissions policy change in question scrapped the standardized test that TJ used to select students objectively (and that probably helped make the school as good as it is) in favor of a system that distributes the vast majority of slots to the top 1.5 percent of students at each of the county’s middle schools. Because some of the county’s middle schools are predominantly black and/or hispanic, the change all but ensured the increased selection of students from these groups.

This was exactly what the change was designed to accomplish. There was no ambiguity about the race-based goal behind the change.

As the dissent shows in painstaking detail (see pages 53-66): (1) the school board’s stated purpose in changing the admissions policy was to address the underrepresentation of blacks and to better reflect the diversity of the community served by TJ, (2) to this end, the board used racial data and modeling extensively to craft the new policy, and (3) in private conversations, board members admitted that the process targeted Asian-Americans.

The majority’s claim that this evidence failed to show intent to favor certain racial groups over Asian-Americans makes for some of the most dishonest writing I’ve ever encountered in a judicial opinion.

Similarly, the majority’s claim that the Asian-American plaintiffs failed to show disparate impact is cynically illogical. The evidence is that in the five years before the policy change, Asian-Americans made up, on average, 71 percent of admitted students. They never made up less than 65 percent.

Under the new “promote diversity policy,” the number fell to 54 percent. This is adverse impact, plain and simple. So is the fact that the success rate for Asian-American applicants dropped from 25 percent to 18 percent.

However, the majority rejected this conclusion on the ground that “before and after” comparisons aren’t the correct way to assess the impact of a policy change. This is nonsense. Before and after comparisons define the impact of a change in policy. For more than 50 years, courts have relied on them to assess disparate impact in change of policy cases.

Because these comparisons produced a result the majority doesn’t like, the two Democrat judges chose (as the dissent says) to rely on an exclusively “after” analysis. It relied on the fact that, even with the change, Asian-Americans still made up a majority of the students accepted by TJ.

But this fact has no bearing on whether Asian-Americans were negatively impacted to a disproportionate degree by the policy change. Moreover, the court’s reliance on this fact is offensive and racialist. It implies that individual Asian-Americans, no matter how meritorious, can’t be the victim of intentional discrimination as long as Asian-Americans as a group make out well. Individuals no longer count — only group identity.

The majority decision also smacks of approving a cap on Asian-American admissions, the way Ivy League schools used to cap Jewish admissions. At the very least it caps the point at which courts will worry about whether Asian-Americans have been discriminated against.

As the dissent says, “If a state enacts a policy with the purpose and effect of trimming down the success of one particular racial group, to a level the state [and, she might have added, certain judges] finds more appropriate, it has discriminated against that group.”

The majority argued that if before and after comparisons are used to assess disparate impact, this will convert the status quo into an “immutable quota,” thereby blocking policy reversals that change a public institution’s demographics, even by neutral means. The majority is wrong.

Public institutions can change their selection policies in any way they want, as long as they don’t change them for the purpose of aiding one racial group at the expense of another. Because the record clearly establishes that the school board changed TJ’s admissions policy for that purpose, the school board violated the Constitution. The panel majority erred in ruling otherwise.

In a few weeks, the Supreme Court will decide the cases challenging race-based preferences used by Harvard and University of North Carolina to select undergraduates. It’s quite possible that the Fourth Circuit will have to reconsider its decision in the TJ case in light of what the Supreme Court says in the Harvard and UNC cases.

I want to suggest, though, that the Supreme Court — or at least the Justices inclined to rule against Harvard and UNC — consider these cases in light of what the Fourth Circuit said in the TJ case. That case shows how college and universities might try to continue discriminating on the basis of race even if Harvard and UNC lose before the Supreme Court.

They might try to do so by adopting facially neutral policies like the one at issue in the TJ case for the purpose of favoring certain groups — e.g., blacks and hispanics — over other groups — e.g. whites and Asian Americans. And they might do a better job than TJ did to avoid creating a paper trail that demonstrates their intent to favor certain racial groups over others. Finally, citing the Fourth Circuit, they can deny the presence of disparate impact by keeping the percentage of Asian-Americans and/or whites they admit at higher levels than those for blacks and hispanics.

This, I expect, will be the strategy of choice for the many institutions that want to circumvent — and indeed resist — adverse decisions in the Harvard and UNC matters. I hope those Justices interested in preventing racial discrimination will be mindful of this tactic and will write/sign opinions that try to foreclose it.